Land and Environment Court of New South Wales CITATION : Stanwill Consulting Engineers Pty Ltd v Lake Macquarie City Council [2005] NSWLEC 309 APPLICANT Stanwill Consulting Engineers Pty Ltd PARTIES : RESPONDENT Lake Macquarie City Council FILE NUMBER(S) : 10931 of 2004 CORAM: Hussey C KEY ISSUES: Development Application :- Land filling - wetland - impact on threatened species - Wallum froglet Threatened Species Conservation Act 1995 LEGISLATION CITED: Lake Macquarie Local Environmental Plan 2004 DATES OF HEARING: 22-23/02/05 and 17/05/05 DATE OF JUDGMENT: 06/10/2005 APPLICANT Mr J Thompson, barrister SOLICITORS Bowen & Gerathy LEGAL REPRESENTATIVES: RESPONDENT Mr G Newport, barrister SOLICITORS Peter Rees JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Hussey C 10 June 2005 10931 of 2004 Stanwill Consulting Engineering Pty Ltd v Lake Macquarie City Council JUDGMENT Background 1 This appeal is against council's refusal of a development application for the provision of drainage works and filling of a depression on vacant lot situated at 119 Bullsgarden Road, Whitebridge. The property is described as Lot 2052, DP 23719. 2 The site has frontages to Bullsgarden Road, Justine Avenue and Lena Place. To the north and east of the site is residential development and to the south are light industrial developments. 3 The site is generally flat land that rises slightly to the west. Approximately 30% of the site is lower than the rest of the site, in the order of 0.5 to 1.0 m, which creates the depression where water is impounded. The site is generally open forest with some riparian (wetland) vegetation. There are no improvements on the site. 4 This existing depression/waterhole, contains a population of Wallum Froglets, which is listed as vulnerable under the New South Wales Threatened Species Conservation Act 1995. 5 Accordingly the central issue in the appeal concerns: 1. Whether the proposed development will have a significant adverse effect on the threatened species of Wallum Froglet, its population and/or its habitats and that affect is such that consent to the development application should be refused. Planning controls Lake Macquarie LEP 6 Under this LEP, the site is zoned part Residential 2(1) and part Urban Centre 3(1) and the proposed filling is permissible with consent. NSW Threatened Species Conservation Act 1995 The evidence 7 Detailed evidence on behalf of council was presented by: - Mr B Wilson, consulting ecologist and his report is Exhibit 2. 8 For the applicant, detailed evidence was presented by: - Mr G Winning, consulting ecologist and his report is Exhibit C. - Mr P Ross, economist and his report is Exhibit F. 9 Other evidence was presented by Dr M Mahony, consulting ecologist and his report is Exhibit 9. 10 It is accepted that the proposed filling is permissible on the site subject to acceptable amenity impacts. Accordingly the critical issue concerns the threat to the Wallum Froglet, which the ecologists agree that there is a relatively small population located in the vicinity of the subject depression. They also agree that this population numbers about 20 and if the consent for the filling is granted, then this population will most likely be extinguished. 11 In accordance with accepted practice, Mr Winning undertook a Section 5A assessment, (8 Part Test), to determine whether there is likely to be a significant affect on the threatened species, or ecological community. This assessment is noted as Table 3 in his report, as follows: Table 3. Section 5A assessment. FACTOR RESPONSE (a) in the case of a threatened species, whether the life cycle of the species is likely to be disrupted such that a viable local population of the species is likely to be placed at a risk of extinction. The proposal would result in the loss of the Wallum Froglet population occurring on the subject site, which is estimated at approximately 20 individuals. This population is considered not to be viable given its isolation and the changing conditions of the drainage depression resulting from recent development of the catchment. Not applicable. (b) in the case of an endangered population, whether the life cycle of the species that constitutes the endangered population is likely to be disrupted such that the viability of the population is likely to be significantly compromised. The proposal would not result in the modification or removal of a significant area of known habitat within the regional distribution of this species. (c) in relation to the regional distribution of the habitat of a threatened species, population of ecological community, whether a significant area of known habitat is to be modified or removed. The proposal would not result in the isolation of any areas of habitat. (d) whether an area of known habitat is likely to become isolated from currently interconnecting or proximate areas of habitat for a threatened species, population or ecological community. No critical habitat would be affected by the proposal. (e) whether critical habitat will be affected. While this species is known to be abundant in several coastal nature reserves and national parks, there have been no studies to determine whether it is adequately represented. (f) whether a threatened species, population or ecological community, or their habitats, are adequately represented in conservation reserves (or similar protected areas) in the region. The proposal involves clearing of native vegetation which is listed as a threatened process. The proposal would also affect the flow regime of the drainage line flowing through the subject site, but it is debatable whether this can be considered to be a "natural flow regime". In their report on the site, Stanwill Consulting Engineers (2004) provided evidence that the natural flow regime was altered in 1989 as a result on nearby residential development and again by Lake Macquarie City Council in 1997 as part of roadworks. Council's letter (point 6) acknowledges that "…the natural flow regime of the site has been impacted by previous development of the area". (g) whether the development or activity proposed is of a class of development or activity that is recognised as a threatening process. The species is not at the limit of its known distribution on the subject site. (h) whether any threatened species, population or ecological community is at the limit of its known distribution. 12 From this, Mr Winning concludes that the proposal would not result in the modification or removal of a significant area of known habitat within the regional distribution of the species. This is based on the premise that the area of habitat to be affected is approximately 0.3 ha, which is relatively small compared to the known habitat of the species in the Jewells Swamp (approximately 13 ha), that is located nearby. He ultimately concludes that the proposed development would not have a significant adverse effect on the threatened species of Wallum Froglet. 13 On insofar as Mr Wilson accepts most of these findings in the 8 Part test following his investigations, nevertheless he does not believe that the wetland on the site is not sufficiently isolated from other wetlands or drainage lines to conclude that the population is not viable. While there is not a continuous corridor of typical acid paperbark habitat joining the subject wetland to the other wetlands within the Jewells - Belmont wetlands, there are drainage lines to both the east and the west of the subject land that under the right conditions could provide a temporary connection for dispersing frogs. 14 Mr Wilson also says that there does not have to be a direct connection between the wetland areas for frogs to disperse. There have been several reports of long-distance dispersal of frog species. Frogs eggs could potentially be transported over reasonably large distances by adhering to the legs or feathers of wading birds or over shorter distances in the hair of terrestrial mammals including dogs. 15 Accordingly Mr Wilson comes to a different conclusion that there would be a significant effect on threatened species or the habitat resulting from the filling of the wetland, since the threatened species habitat and therefore the local population would be totally removed from the subject land. Therefore, he says that a Species Impact Statement (SIS) would be required. 16 In light of this disagreement, Mr Wilson and Mr Winning conferred. Their main point of disagreement concerns the viability of this local froglet population. In this regard they refer to the NPWS Threatened Circular No. 2, which recommends that a "local population should be considered to be viable (i.e. a population that has the capacity to live, develop and reproduce under normal conditions) unless the contrary can be conclusively demonstrated through analysis of records and references". 17 During the conference they considered various aspects of small population breeding cycles, together with the long-term habit provisions for the froglet, which requires an acid swamp environment. They also considered the character of the subject depression/wetland, which has been invaded by Cumbungi and in the absence of any management program, is likely to result in a habitat that does not favour the Wallum Froglet. 18 Another point agreed is that there is little research or documentation on the indirect dispersal of frogs (including eggs and tadpoles) by birds or other animals, but they accept that this probably does occur. Accordingly they expressed different opinions about the importance of this type of dispersal. 19 Insofar as there was detailed cross examination of these ecologists, they referred to other papers presented by Dr M Mahony, where it had been indicated that a minimum population of 2000 froglets was considered viable at the nearby Jewells wetlands. However both agreed to defer to Dr Mahony's opinion on the viability of the subject Wallum Froglet population. 20 Accordingly Dr Mahony addressed the following three questions: 1. Is a population of 20 individuals viable, considering there is no migration to the site? 2. Is a population of 20 individuals viable if migration occurs, and is this a likely occurrence given the description of the physical isolation of the habitat?, and 3. Do the likely changes in surrounding habitat affect viability of population? 21 In response to the first question, Dr Mahony says that the viability of population must be associated with the various components necessary for all stages of life cycle, and for frogs that necessarily includes the aquatic and terrestrial components of the habitat. He says there is ample evidence that the site contains suitable habitat to support all stages of the life cycle of the Wallum Froglet. While ecologists may be engaged in determining which components of a habitat are necessary and which are peripheral to survival, the ultimate test of suitability is the presence of a persistent population. In this situation there is data to indicate that the Wallum Froglet population has persisted at the site and is viable. 22 The question of viability also includes consideration of the long-term prospects of a population of limited size and this requires consideration of the chance of survival over the long-term. This involves chance associated with environmental variation (environmental stochasticity), chance associated with population variation (demography stochasticity) and chance involved with genetic variation (genetic drift). Also interacting with these features is the role of habitat corridors to enable recolonisation or migration to the site. 23 Dr Mahony says there is compelling biological evidence for the importance of population size and connection among populations for the long-term survival of populations and there are numerous examples where populations have existed for long time in small numbers. In further support of his opinion on the viability of the subject population, he expresses concerns about the process of incremental loss (i.e. "death by a thousand cuts") because in the long-term this would result in the removal of many populations and biodiversity would only occur in conservation reserves. 24 In regard to the second question, Dr Mahony says the population at the site would be viable if migration occurred because connections between habitats (habitat corridors) enable populations to overcome the difficulties for long-term survival created by small size. Insofar as the subject population appears somewhat isolated from other Wallum Froglets in the local area, nevertheless there is a connection along the watercourse to the Jewells Swamp, which is approximately 400 m and possibly accessible during periods of above average rainfall to allow dispersal of the froglet. 25 Regarding the question on likely changes to surrounding habitat, Dr Mahony concurs that the habitat has changed from its original connection to other swamp habitat in the local area. But he does not agree with Mr Winning that the population at the site represents a remnant of a once larger population of Wallum Froglets. He says that: "There is no data to indicate that the extent of habitat at the site was any greater than at present. In fact there is some indication that the extent of habitat at the site may have increased by previous road developments adjacent to the site". 26 In his evidence, Dr Mahony refers to a number of papers dealing with the viability, quality and integrity of populations in different situations and expresses caution that conclusions on population and viability should be made on the basis of the Wallum Froglet being a coastal swamp or heath species, which has different effects to studies focused on forest lands. 27 Dr Mahony concludes that: Finally, we face a major dilemma if we make decisions that a number of threatened species is unviable based on some scientific number of individuals, be it 20, 200, or 2000. Each case should be considered on its merits. In addressing whether an impact on a population of a threatened species is significant (Threatened Species Conservation Act 1995 and Environmental Planning and Assessment Act 1979) the consideration of merit relies on an assessment against questions in the 8-part (Section 5a of the EPA Act). Taking on board the importance of precautionary approach in such deliberations, and where the viability of population of threatened species is uncertain, it should be the subject of a Species Impact Statement. This process provides the opportunity to gather a necessary information on the population so that there is an informed decision, and if possible, some migration considered. Conclusions 28 Having considered the evidence, the submissions and undertaken a view, I accept that there is an existing Wallum Froglet population of about 20 existing on the subject site, which would most likely be extinguished by the proposed drainage and filling of the depression on the land. As they are listed as vulnerable under the Threatened Species Conservation Act, appropriate assessment is required on the impact of development. 29 In this case, the question of the viability of this local population is the threshold matter. Insofar as there are some different approaches and opinions by the ecologists, nevertheless they defer to Dr Mahony expertise in this specialised area. His evidence is that further investigation is required by way of a Species Impact Statement, to adequately assess the impact on this threatened species population. 30 In my assessment of the evidence, it is appropriate to take a cautionary approach as advocated by Dr Mahony, because the 8 Part test indicates that this development would impose a significant adverse effect on this population of the Wallum Froglet and therefore a Species Impact Statement (SIS) is required. In the absence of this SIS, I consider this application should be refused. Court orders 1. The appeal is dismissed. 2. Development consent to DA04/3810 for the drainage and filling of the depression at 119 Bullsgardens Road, Whitebridge, is refused. 3. The exhibits may be returned except for Exhibits 2, 5, 7, 9, C, and E. _____________ R Hussey Commissioner of the Court rjs DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.