Posted on October 16, 2014 by Sue Puckeridge

Impacts on threatened species – What if they are less than significant?

The recent Court of Appeal decision in Davis v Gosford City Council [2014] NSWCA 343  makes it clear that impacts on threatened species,  populations, or ecological communities, or their habitats are relevant considerations under s79C of the Environmental Planning and Assessment Act 1979 (‘the Act’), even if those impacts are not significant and a species impact statement (‘SIS‘) is not required to be prepared under s5A of the Act.

The case has an extensive background (read decision on NSW Caselaw).  In summary the Applicants had sought approval for an integrated  resource recovery facility.  The development was designated development under the Act.  The proposed development involved the clearing of native vegetation which was habitat for the Eastern Pygmy Possum.

In earlier proceedings in the Land and Environment Court (‘Court’), the Court had found that the impacts of the development on the Eastern Pygmy Possum were not significant.  However , in a subsequent class 1 appeal against the deemed refusal of the development by the Council, two Commissioners of the Court found that the impacts were nevertheless unacceptable and consequently dismissed the appeal.  On appeal pursuant to s53A of the Land and Environment Court Act 1979, Pepper J held that the Commissioners were entitled to refuse the development on the ground that the impacts on the Eastern Pygmy Possum were unacceptable under s79C(1)(b) of the Act.

The appeal to the C0urt of Appeal concerned the interrelationship between s5A and s79C of the Act for the assessment of the proposed development on threatened species and whether the Court had erred in failing to take into account the Director-General’s concurrence granted under s79B(3) of the Act. This latter issue is not the subject of this discussion.

Interrelationship between ss5A and 79C

Section 5A of the Act sets out the requirements which must be taken into account in determining whether a development is likely to have a significant effect on threatened species. The purposes of the section is expressed in s5A(1) to include “the administration of sections 78A, 79B, 79C, 111 and 112,…”.

The essence of the Appellant’s argument was that the only avenue for the consent authority to consider the impact on threatened species was pursuant to s79C(1)(b) of the Act which requires a consent authority to consider :  ‘the likely impacts of that development, including environmental impacts on both the natural and built environments, and social and economic impacts in the locality’.

Once it was determined under s5A that a development did not have a significant impact on threatened species, then it was not open to the consent authority to consider the impact as a relevant matter under s79C and refuse development consent on the basis of the impacts on threatened species.

The Court of Appeal, (the leading judgment being given by the Preston J, Chief Judge of the Land and Environment Court) emphatically rejected this argument finding that s5A does not narrow the extent of the matters for consideration under s79C of the Act.  Key amongst its findings were the following:

• Section 79C(1)(b) is ‘expressed in words of high generality’ [at 74] and encompasses all likely impacts and not simply those that are significant.
• There was no support for the argument that consideration of the impact on threatened species, populations or ecological communities, or their habitats was restricted to s79C(1)(b). Matters relating to threatened species could be dealt with under all matters listed under s79C(1).  This included under environmental planning instruments under s79C(1)(a); when considering the suitability of a site under s79C(1)(c); when considering submissions under s79C(1)(d) and when considering the public interest under s79C(1)(e).
• There was no support for the argument that only likely significant effects on threatened species, populations or ecological communities, or their habitats can be considered under s79C and anything less is irrelevant.
• Section 5A is limited to determining whether the likely effect on threatened species, populations or ecological communities, or their habitats meets the threshold test of being significant.  It does not apply in deciding whether there is any effect on threatened species, populations or ecological communities, or their habitats or in evaluating that effect.

This decision has implications for both consent authorities and applicants.  Consent authorities must ensure that when assessing development applications they take into account all impacts on threatened species, populations or ecological communities, or habitats and not simply be satisfied that the impacts are satisfactory because the evidence shows that those impacts are not significant.  A failure to do so may result in a consent being open to challenge, although the weight that is given to the issue will be a matter for the Council in light of the other matters to be considered for the particular development.

Similarly, applicants must, when preparing either a statement of environmental effects or an environmental impact statement, consider all impacts on threatened species, populations or ecological communities, or their habitats.  The failure to do so may result in in delay in the assessment process or even a determination by way of refusal, as was the case in this instance.