Australia: Friends of Tumblebee Incorporated v ATB Morton Pty Limited (No 2) [2016] NSWLEC 16: Endangered species

On 11 March 2016, Pepper J of the Land and Environment Court (Court) handed down the decision in the matter of Friends of Tumblebee Incorporated v ATB Morton Pty Limited (No 2) [2016] NSWLEC 16, declaring that a development consent granted was invalid because a Species Impact Statement (SIS) was not prepared.

The decision has important implications for developers undertaking developments in areas where endangered species and/or their habitats may be impacted.

SUMMARY & IMPLICATIONS

  • The judgment demonstrates an increasing application of the precautionary principle and consideration of cumulative impacts by the Court in assessing development applications, particularly in the Hunter Valley, for example see Bulga Milbrodale Progress Association Inc v Minister for Planning and Infrastructure and Warkworth Mining Limited [2013] NSWLEC 48.  
  • In considering whether a SIS should accompany a development application, developers should be mindful of the precautionary principle and the fact that even a small amount of native vegetation clearing may be found to have a significant impact on a threatened species and/or its habitat. In particular, the judgment in Tumblebee is a useful reminder that inaction is not necessarily the optimal response to addressing the scientific uncertainties that may arise in the assessment of development applications. Environmental impacts should be considered upfront in order to avoid the risk of a court challenge later in the project cycle.
  • Engagement of qualified experts who are specialists with respect to the relevant species in question is of vital importance to ensuring environmental assessments are adequate where threatened and endangered species may be affected by a proposed development. In Tumblebee, Pepper J had regard to the fact that ATB Morton Pty Ltd's expert's curriculum vitae did not disclose if he had experience in ornithology. On the other hand, the applicant's expert (whose evidence Pepper J preferred) was an ornithologist with particular experience in the ecology of declining woodland birds including the Regent Honeyeater, being a critically endangered species that might be adversely impacted by the proposed development.

BACKGROUND

The proceedings concerned a development application (DA) made by ATB Morton Pty Limited (ATB) on 19 November 2012 for the construction of a steel fabrication workshop and distribution facility in the Hunter Economic Zone (HEZ).  Cessnock City Council (Council) approved the DA on 23 October 2013 which was not accompanied by SIS. Friends of Tumblebee Incorporated (Tumblebee) contended that a SIS was required under the Environment Planning and Assessment Act 1979 (NSW) (EPA Act) because the proposed development was likely to significantly affect a threatened species and/or its habitat under the Threatened Species Conservation Act 1995 (NSW) (TSA Act), being the Regent Honeyeater.

Justice Pepper of the Land and Environment Court held that a SIS was required because the development was likely to significantly affect the Regent Honeyeater and/or its habitat. As no SIS was prepared, the development consent was declared invalid. 

REQUIREMENT FOR A SPECIES IMPACT STATEMENT

Section 78A(8)(b) of the EPA Act provides that where a development application is made in respect of development that is:

  1. on land that is part of critical habitat; or
  2. likely to significantly affect threatened species, populations or ecological communities, or their habitats, the development application must be accompanied by a SIS.

Is the development likely to significantly affect the Regent Honeyeater and/or its habitat?

Section 5A(1)(b) of the EPA Act provides that in determining this question the Court must have regard to any applicable assessment guidelines.  Relevantly, this included the Threatened Species Assessment Guidelines (January 2008) (TSA Guidelines). 

Section 5A(1)(a) also provides that consideration must also be given to the seven factors described in section 5A(2) of the EPA Act.  Of the factors listed in section 5A(2) and applying the TSA Guidelines, the following three factors were applicable to the question of whether the proposed development was likely to significantly affect the Regent Honeyeater and/or its habitat.  

1 whether the proposed development is likely to have an adverse effect on the lifecycle of the Regent Honeyeater such that a viable local population of the Regent Honeyeater is likely to be placed at risk of extinction

Both experts agreed that the local population of the Regent Honeyeater was "viable".

Tumblebee's expert opined that the Regent Honeyeater is "susceptible to loss of links in the chain" caused by habitat fragmentation and that the development site, once cleared, would cause incremental habitat loss, increase competition by Noisy Minors and reduce the potential of a breeding event in the future. 

ATB's expert opined that the proposed development would be unlikely to have an adverse effect on the lifecycle of the Regent Honeyeater because:

  1. the total direct loss of potential habitat and marginal potential habitat equated to less than 0.1% of potential habitat within the HEZ study area;
  2. there were no records of the Regent Honeyeater within the proposed site;
  3. no attribute of the site had been identified as being critical to the survival of the species; and
  4. other existing developments and clearing within the HEZ had not prohibited site usage by the Regent Honeyeater.

Accepting the evidence of Tumblebee's expert, Pepper J held that the proposed development was likely to have an adverse effect on the lifecycle of the Regent Honeyeater such that a viable local population of the Regent Honeyeater was likely to be placed at risk of extinction because:

  1. although the amount of clearing proposed was quantitatively small, it was likely to reduce the likelihood of a successful breeding event in the future which, given the bird's limited population, would be catastrophic;
  2. a total of 135.2ha of clearing had been approved in the HEZ.  The cumulative impacts of other approved developments in the HEZ could also be into account (although to take into account potential development is too speculative); and
  3. there was evidence of a Regent Honeyeater breeding event in 2007/2008 which appeared to be restricted to the vicinity of the HEZ.

2 (i) whether the habitat of the Regent Honeyeater is likely to be removed or modified as a result of the proposed development

Although the extent of the habitat removal or modification appeared, at first, to be quantitatively small, the TSA Guidelines and the notion of cumulative impacts required consideration of the short and long term impacts of the proposed development, both direct and indirect, on the habitat that is likely to support the Regent Honeyeater.  This included contemplation of other approved developments in the HEZ and their associated clearing impacts on the further fragmentation of the Regent Honeyeater habitat.  Justice Pepper determined that the extent of the removal or modification of the Regent Honeyeater habitat was not as modest as suggested by ATB. 

(ii) whether the habitat of the Regent Honeyeater is likely to be fragmented or isolated as a result of the proposed development

The experts agreed, and Her Honour accepted, that the proposed development would, when other approved developments in the HEZ were taken into account, cumulatively lead to habitat fragmentation in the HEZ.

(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 experts also agreed that the retention of habitat is very important to the long term survival of the Regent Honeyeater and that habitat clearance is one of the main threats to the species.

3  whether the proposed development constitutes, is part, or is likely to result in the operation or increase the impact of a key threatening process

The two key threatening processes identified by the Court were the clearing of native vegetation and the aggressive exclusion of Regent Honeyeaters from its habitat by the abundant Noisy Minors.  Although records exist of Regent Honeyeaters within the HEZ on the edge of cleared land, adopting a precautionary approach, it was reasonable to draw the inference that the clearing of habitat is likely to expose the surrounding forest to an increased risk of incursion by Noisy Minors.

Consequently, Pepper J held that the proposed development 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.

CUMULATIVE IMPACT OF THE PROPOSED DEVELOPMENT

The cumulative impacts of the proposed development were highly relevant to Pepper J's determination that the proposed development would likely significantly impact the Regent Honeyeater and/or its habitat. 

Significantly, Pepper J held that the cumulative impact of the development is a relevant matter as a separate factor to be taken into account under section 78A(8)(b) of the EPA Act. 

Her Honour concluded that the Regent Honeyeater habitat in the HEZ would be likely to suffer from cumulative impacts associated with clearing from other approved developments in addition to the clearing associated with the proposed development. Although not all approvals granted in the HEZ would be carried out, it would be reasonable to conclude that a reasonable proportion of the 135ha proposed would be cleared. As a result, Pepper J held that the cumulative impact of the proposed development served to exacerbate the decline of the species, and that this was a fact that must be taken into account.

THE PRECAUTIONARY PRINCIPLE AND IMPLICATIONS

The precautionary principle was also a prominent aspect of Pepper J's judgment. Justice Pepper identified a number of scientific uncertainties including the number of Regent Honeyeaters left in the wild, the impacts of the Noisy Minor and the habitation of the Regent Honeyeater in the proposed development site (as opposed to the greater HEZ). Applying the precautionary principle and taking into consideration likely cumulative impacts, Pepper J held that it was clear that the proposed development posed a threat of serious or irreversible environmental damage. Having regard to the judgment in Tumblebee, it is important that developers carefully consider the impacts of any proposed development on a threatened or endangered species, not just in isolation, but in its broader context having regard to surrounding development. The advice of appropriate specialists with expertise in relation to the species in question and their habitats will also be critical to any review of the adequacy of the environmental assessment of the likely impacts of a proposed development undertaken by the developer.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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