Gales Holdings Pty Limited v Tweed Shire Council [2006] NSWLEC 85 (27 February 2006)

Last Updated: 1 March 2006

NEW SOUTH WALES LAND AND ENVIRONMENT COURT



CITATION: Gales Holdings Pty Limited v Tweed Shire Council [2006] NSWLEC 85





PARTIES:

APPLICANT

Gales Holdings Pty Limited



RESPONDENT

Tweed Shire Council





CASE NUMBER: 10263 of 2005





CATCH WORDS: Development Application





LEGISLATION CITED:

Environmental Planning and Assessment Act 1979 s4, s 5(a)(vii), s 5A, 78A(8)(b)

Protection of the Environment Administration Act 1991 s 6(2)

Threatened Species Conservation Act 1995 s 4,

Threatened Species Conservation Amendment Act 2002



CORAM: Talbot J



DATES OF HEARING: 13/07/2005, 14/07/2005, 15/07/2005, 24/08/2005, 24/11/2005 (site inspection), 25/11/2005, 28/11/2005, 05/12/2005 (written submissions), 22/02/2006 (written submissions).



DECISION DATE: 27/02/2006





LEGAL REPRESENTATIVES



APPLICANT

Mr T F Robertson SC

SOLICITORS

Woolf Associates



RESPONDENT

Mr J J Webster SC with Ms S A Duggan (Barrister)

SOLICITORS

Stacks/Northern Rivers





JUDGMENT:

THE LAND AND

ENVIRONMENT COURT

OF NEW SOUTH WALES





Talbot J





27 February 2006





10263 of 2005 Gales Holdings Pty Limited v Tweed Shire Council





JUDGMENT



1 Talbot J: By application class 1 filed 24 March 2005 Gales Holdings Pty Limited (“the applicant”) has appealed against the deemed refusal of Development Application No. 04/1331 lodged with Tweed Shire Council (“the council”) for a shopping and commercial development on lots 12 and 13 DP 871753.



2 The council has raised a preliminary point whether the development application should be accompanied by a species impact statement (“SIS”) on the basis that the development is likely to have a significant impact on the Mitchell’s Rainforest Snail Thersites mitchellae (“MRS”).



3 The applicant proposes to clear and fill land for the purposes of constructing a supermarket based shopping centre and relocate an existing drain.



4 On 21 October 2005 the development application was amended to include environmental restoration works in accordance with a habitat restoration plan and modification of the stormwater connection channels. The environmental restoration works include planting additional snail habitat, regeneration and weed control, construction management and monitoring.



The site



5 The land the subject of the development application comprises two parcels which front Turnock and Quigan Streets, Kingscliff.



6 The site comprises 13.4 hectares situated on the end of the Chinderah flood plain. Ground levels average 1m AHD. There is an old farm drain (or “cane drain”) running across the site. The drain collects all drainage from the subject land as well as from the developed parts of Kingscliff to the south and east. The land rises in the south. It is necessary to relocate the drain further to the south in order to accommodate the supermarket. Urban runoff into the site has increased significantly over recent years as a consequence of the closing off of the main flow path to the north and west. The flow capacity of the drain within its banks is quite limited through lack of regular maintenance. According to Dr Webb, the applicant’s hydraulic consultant, the relocation of the drain is unlikely to alter groundwater or surface water levels and will not disturb the area where the bulk of MRS have been detected.



7 There is a disagreement between the experts in respect of the extent and location of the most important habitat for the MRS and the relationship of that habitat to the proposed drainage works. In order to provide a relatively drier environment for the MRS some limited filling is proposed to allow connection of the main existing habitat with other remnant areas. Moreover, two drains are proposed to catch stormwater outfall from the south so that it is diverted directly to the relocated drain. These drains will be covered in part to allow migration of the MRS. The relocated drain will be routed along the southern edge of the preserved and enhanced snail habitat.



The legislative framework



8 Section 78A(8) of the Environmental Planning and Assessment Act 1979 (“the EPA Act”) relevantly provides:-



(8)A development application must be accompanied by:



(a) ...



(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.



9 The determination of whether there is likely to be a significant effect is a jurisdictional fact and a matter that the Court must determine itself (Timbarra Protection Coalition Inc v Ross Mining NL & Others [1999] NSWCA 8; (1999) 46 NSWLR 55).



10 Section 4 of the EPA provides that:-



threatened species, populations and ecological communities and threatened species, population or ecological community have the same meaning as in the Threatened Species Conservation Act 1995 ...



11 Section 4 of the Threatened Species Conservation Act 1995 (“the TSC Act”) provides:-



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.

threatened species, populations and ecological communities means species, populations and ecological communities specified in Schedules 1, 1A and 2 and threatened species, population or ecological community means a species, population or ecological community specified in any of those Schedules.



12 The MRS is listed in Part 1 of Schedule 1 of the TSC Act. Accordingly, the MRS is a threatened species.



13 Section 5A of the EPA Act lists certain factors that must be taken into account in deciding whether there is likely to be a significant effect on threatened species in the form of the eight part test. They are:-



(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 risk of extinction,



(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,



(c) in relation to the regional distribution of the habitat of a threatened species, population or ecological community, whether a significant area of known habitat is to be modified or removed,



(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,



(e) whether critical habitat will be affected,



(f) whether a threatened species, population or ecological community, or their habitats, are adequately represented in conservation reserves (or other similar protected areas) in the region,



(g) whether the development or activity proposed is of a class of development or activity that is recognised as a threatening process,



(h) whether any threatened species, population or ecological community is at the limit of its known distribution.



14 Section 5A of the EPA Act was amended by the Threatened Species Conservation Amendment Act 2002 on 31 October 2005; after the date of the amended development application. The parties are in agreement that the provisions of s 5A as in force prior to the recent amendments are applicable to the consideration of the eight part test in the circumstances of this case. I have proceeded on that basis.



15 In Carstens v Pittwater Council [1999] NSWLEC 249; (1999) 111 LGERA 1 Lloyd J said at [61]:-



The critical question is that which is posed by s 78A(8)(b): is the development on land that is, or is part of, critical habitat or is likely to significantly affect threatened species, populations or ecological communities, or their habitat?



16 In Oshlack v Richmond River Shire Council and Iron Gates Development Pty Ltd (1993) 82 LGERA 222 Stein J accepted that the interpretation of “likely” to mean a “real chance or possibility” and “significantly” to mean “important, notable, weighty or more than ordinary” in the context of Part 5 of the Act could be applied to similarly worded provisions of s 77(3)(d1) – the former s 78A(8)(b).



17 A positive answer to one or more of the eight parts of the test in s 5A of the EPA Act does not necessarily mean there is likely to be a significant effect (Masterbuilt Pty Ltd v Hornsby Shire Council [2002] NSWLEC 170). An affirmative answer to one of the tests set out in s 5A is sufficient to support a finding of a significant effect (Carstens at [61]).



18 The eight part test is not the only inquiry; there may be other relevant facts and circumstances which are not specifically contained in any of the factors in the eight part test (Plumb v Penrith City Council [2002] NSWLEC 223).



19 Any associated ameliorative measures that form part of the proposed development are relevant factors to be taken into account. (Smyth v Nambucca Shire Council and Another [1999] NSWLEC 226; (1999) 105 LGERA 65).



The argument



20 The council contends that the unknown biology of the MRS and the likely effects of the development application on the site render it an “inescapable conclusion” that the development would have a significant effect upon the MRS. The council further argues that the applicant’s experts have erroneously concentrated on the means to ensure the continued viability of the site as habitat rather than addressing whether there is likely to be significant effect.



21 On the other hand the applicant submits that the majority of the land the subject of the development applicant is marginal MRS habitat and in its current state is unable to support a viable local population in the long term. The applicant therefore argues that its proposal, including remedial measures, will improve the MRS habitat on the site whereas “to do nothing” would more than likely lead to the extinction of the population on the site. The applicant refers to the precautionary principle to support its position that the “do nothing” approach poses a threat of serious and irreversible harm and therefore action must be taken to protect and improve the core habitat of the species.



The experts



22 The three experts, Mr Peter Parker for the council and Dr Andrew Smith and Dr John Stanisic instructed by the applicant, have produced a joint statement dated 13 July 2005. This document was prepared before the development application was amended.



23 They agree that very little is known about the life cycle of MRS. The few facts that are known are summarised in the Mitchell’s Rainforest Snail Recovery Plan (“the Recovery Plan”) prepared by the National Parks and Wildlife Service. It is also agreed that the original population of MRS on the site has been highly fragmented.



24 Dr Stanisic and Dr Smith contend that the area of habitat to be removed does not contain significant MRS habitat. It represents what they describe as marginal habitat in which the long term viability of the snails cannot be guaranteed. Moreover they say the removal of the habitat will be more than compensated by the rehabilitation proposed.



25 Mr Parker, who has no formal qualification in relation to the MRS but has practical expertise in assessing the impact on areas where there is a known habitat in other cases, says that live snails and shells have been recorded in the area of proposed habitat removal. In addition, no survey has been carried out in relation to the number of snails that will be killed as a percentage of the population on the site. Further Mr Parker says the proposed works are contrary to the Recovery Plan. Moreover the area proposed to be reinstated will not be of any value for a considerable period of time. Land clearing in his view is a major problem for the snails and will more than likely result in a decline in snails at the site and fragmentation of the population.



The eight part test



26 All three witnesses addressed the eight part test as follows:-



(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 risk of extinction,



27 The opinion of Mr Parker is that the population of MRS on the site is viable despite there being no data on the number of live individuals present. Mr Parker relies on the Recovery Plan which reports that it is not known what number of individuals constitute a viable local population. However, the number is not considered to be large and populations are considered viable unless proven otherwise. In addition Mr Parker says that altered microclimate, weed invasion (including edge effects) and potential foraging by rats and cane toads are factors that are likely to hasten the decline of the MRS.



28 Dr Stanisic, a zoologist and biodiversity expert on Australian land snails, contends that the main mass of the population of MRS on the land lives in swamp forest. He says that a sub-population, north of Turnock Street, known only from the evidence of dead shells persists in unsuitable habitat, of which a small part will be removed and compensated by replanting. Therefore the removal of a small amount of this marginal habitat is not considered to disrupt the life cycle of this population of MRS or place it at risk of extinction.



29 Dr Smith an expert with experience in survey, impact and assessment of threatened flora and fauna, agrees with purported eight part test findings of Dr Stanisic. Dr Smith refers to all MRS habitat on the site as marginal and at high risk of degradation. He also states that a small amount of habitat will be removed but in his view will be more than compensated for by replanting. Dr Smith says that Mr Parker fails to distinguish between core and marginal habitat.



(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,



30 Mr Parker does not address this limb of the test as he regards it as not being relevant to the development application.



31 Dr Stanisic states that the life cycle is not likely to be disrupted by the removal of a small amount of marginal habitat. In addition the maintenance and remediation of the site is the key to the survival and continued life cycle of the species on the site.



32 Dr Smith does not address (b).



(c) in relation to the regional distribution of the habitat of a threatened species, population or ecological community, whether a significant area of known habitat is to be modified or removed,



33 Mr Parker considers that with respect to its regional distribution the removal of MRS habitat is likely to be significant based on an assessment of the relative scale and remnant value of the habitat, quality and setting in the landscape at the regional scale.



34 Dr Stanisic says that the preferred habitat of the MRS is lowland subtropical rainforest, and all but tiny remnants of this remain on the land. The only habitat to be removed by the proposed development is considered to be marginal habitat. Dr Stanisic reiterates that the MRS has its main core mass in the area of swamp forest that is to be rehabilitated by the proposal.



35 Dr Smith also says that the net area of habitat will be increased and the only areas of habitat to be removed are considered to be unsuitable or marginal.



(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,



36 In Mr Parker’s opinion the reconstruction and realignment of the drain will result in the removal of MRS habitat and will lead to an area of habitat becoming isolated from currently interconnected or proximate areas of habitat.



37 In contrast Dr Stanisic argues that the proposed development will not result in the fragmentation or isolation of MRS habitat beyond what already occurs and that the proposal will reconnect the two main areas in which the MRS resides.



38 Dr Smith says that habitat connectivity will be improved by the proposal and restored habitat will connect the snail population on the site with other populations in the area. Dr Smith claims that Mr Parker has fallen into error by the inclusion of the swamp paperbark as viable habitat.



(e) whether the action proposed is likely to have an adverse effect on critical habitat (either directly or indirectly),



39 Mr Parker and Dr Stanisic state that the site does not contain critical habitat. Dr Smith does not address (e).



(f) whether a threatened species, population or ecological community, or their habitats, are adequately represented in conservation reserves (or other similar protected areas) in the region,



40 Mr Parker relies on the Recovery Plan to conclude that the species is inadequately reserved in conservation areas. The Recovery Plan states that “most of the known populations of MRS occur outside current conservation reserves. The largest known population is Stotts Island Nature Reserve in the Tweed River...the current reserve system does not represent an adequate coverage of the species.”



41 Dr Stanisic says that the MRS has been afforded conservation protection in the Stotts Island Nature Reserve as well as secondary protection in a series of protected wetlands in the Byron Bay area.



42 Dr Smith states that the under the proposal the area of habitat to be protected will increase as the proponent has agreed to apply a conservation covenant on the title.



(g) whether the development or activity proposed is of a class of development or activity that is recognised as a threatening process,



43 A threatening process is defined under the TSC Act as a process that threatens, or may have the capability to threaten, the survival or evolutionary development of species, populations or ecological communities. Mr Parker identifies two threatening processes listed under the TSC Act which he believes are relevant to the proposal. They are clearing of native vegetation and removal of dead wood and dead trees.



44 On the other hand Dr Stanisic says that the proposal will not increase the risk of habitat destruction through fire, weed infestation, clearing native vegetation and indirect effects of drainage, beyond what has already occurred. Conversely the proposal will improve drainage and reduce weed infestation. The clearing of vegetation is restricted to the removal of a small amount of marginal habitat that will be compensated by replanting.



45 Dr Smith says that clearing will not have an impact in this case as only marginal habitat will be removed.



(h) whether any threatened species, population or ecological community is at the limit of its known distribution.



46 All experts agree that the MRS on the Gales land is not at the limits of its known distribution. The MRS is known to occur in other parts of north-eastern NSW.



Habitat



47 The parties are in disagreement over the proper identification of habitat. Habitat is defined in the TSC Act as follows:-



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.



48 I accept the submission by Mr Robertson SC, on behalf of the applicant, that the preferred habitat of the MRS can be described generally as coastal rainforest on basaltic soil or swamp paperbark community with well developed rainforest understorey and leaf litter on the ground.



49 Mr Parker contends that the use of the term “sub marginal” by the applicant’s experts is erroneous as it is not defined in the TSC Act. Mr Parker opines that “sub marginal” is used to devalue the vegetation where the MRS habitat is known to occur and which is proposed for removal. In response Dr Smith asserts that the classification of habitats into core and marginal is helpful and essential to the application of the eight part test. Dr Smith contends that Mr Parker incorrectly assumes that habitat is any area occupied by an species and thereby includes unsuitable areas within the definition of habitat. In cross examination Mr Parker stated that habitat is anywhere occupied by the snail. Dr Stanisic on the other hand says that snails will crawl everywhere and will end up in particular places where their survival is threatened. If Dr Stanisic is right, then the potential for the development to encroach on areas occupied by the snail even sporadically, accidentally or occasionally is real.



50 Mr Robertson contends that areas where snails may meander, such as roads, are not within the definition of habitat in the TSC Act. Mr Robertson also suggests that the word occupied, as defined, denotes a degree of permanency as opposed to mere physical presence. He further contends that in the case of a species that wanders, habitat is an area that provides food and shelter. Mr Robertson also submits that s 5A requires a determination of whether a “significant area of habitat is to be modified or removed.” In his submission significant refers to value and area of habitat and therefore the value of the habitat may range from sub marginal to core.



51 Mr Webster SC, on behalf of the council, submits that the definition of habitat does not give rise to a limitation or qualification and that the definition specifically includes area which may not be preferred habitat by reference to “periodically or occasionally occupied.” Mr Webster further submits that the evidence of Dr Stanisic, particularly in respect of the eight part test, is not helpful primarily because he conceded that he did not know the definition of habitat under the TSC Act.



52 The council contends that Dr Stanisic erroneously concentrates on prime main mass habitat and the long term survival of the snail rather than areas where the snail has been found. Dr Stanisic does not dispute that the MRS has been found in areas that he regards as being outside of the MRS habitat but says that the MRS would simply not survive in those areas. This is consistent with Dr Smith’s description of the site as a “sink” where animals might disperse but ultimately perish.



53 Dr Stanisic says that the rehabilitation works provide the only means of survival for the MRS. However, Dr Stanisic also says that there is also very little known about work done in respect of rehabilitated areas. He also agreed in cross examination that the viability of the snail on the site is conjectural. Mr Webster submits that these factors combined with the removal of habitat from the site lead to the conclusion that there is likely to be a significant effect on the MRS.



54 The Recovery Plan states that any bush remnant containing lowland subtropical rainforest but also other lowland moist forest communities are to be considered as potentially harbouring MRS no matter how small or degraded it might appear. Mr Webster contends that areas to be removed contain these characteristics. The Recovery Plan also states that if the proposed activity causes destruction of all the available habitat present on the site then the local population will be lost as there is little potential to recolonise.



55 The high degree of uncertainty surrounding the life cycle of the MRS combined with the highly fragmented population of MRS on the site together in my view raise sufficient concern that the proposed development will have a significant effect on the population of MRS known to exist on the site. I am not persuaded that only a small area of relevant habitat will be disturbed or removed. The nature of the MRS activity is that it encroaches beyond the areas identified as its preferred habitat.



Application of the precautionary principle



56 One of the objects of the EPA Act is to encourage ecologically sustainable development (s 5(a)(vii)). One of the principles of ecologically sustainable development is the precautionary principle. Both parties agree that the precautionary principle is a relevant factor to be taken into account. The precautionary principle provides that where there are threats of serious or irreversible damage, lack of full scientific certainty shall not be used as a reason for postponing cost-effective measures to prevent environmental degradation.



57 Ecologically sustainable development in the TSC Act and EPA Act has the same meaning as s 6(2) of the Protection of the Environment Administration Act 1991. Section 6(2) provides that ecologically sustainable development can be achieved by the adoption of the following programs and principles:-



(a) the precautionary principle—namely, that if there are threats of serious or irreversible environmental damage, lack of full scientific certainty should not be used as a reason for postponing measures to prevent environmental degradation.

In the application of the precautionary principle, public and private decisions should be guided by:



(i) careful evaluation to avoid, wherever practicable, serious or irreversible damage to the environment, and



(ii) an assessment of the risk-weighted consequences of various options,



(b) inter-generational equity—namely, that the present generation should ensure that the health, diversity and productivity of the environment are maintained or enhanced for the benefit of future generations,



(c) conservation of biological diversity and ecological integrity—namely, that conservation of biological diversity and ecological integrity should be a fundamental consideration,



(d) improved valuation, pricing and incentive mechanisms—namely, that environmental factors should be included in the valuation of assets and services, such as:



(i) polluter pays—that is, those who generate pollution and waste should bear the cost of containment, avoidance or abatement,



(ii) the users of goods and services should pay prices based on the full life cycle of costs of providing goods and services, including the use of natural resources and assets and the ultimate disposal of any waste,



(iii) environmental goals, having been established, should be pursued in the most cost effective way, by establishing incentive structures, including market mechanisms, that enable those best placed to maximise benefits or minimise costs to develop their own solutions and responses to environmental problems.



58 In Leatch v National Parks and Wildlife Service and Shoalhaven City Council (1993) 81 LGERA 270 at 282 Stein J said:-



[The precautionary principle] is directed towards the prevention of serious or irreversible harm to the environment in situations of scientific uncertainty. Its premise is that where uncertainty or ignorance exists concerning the nature or scope of environmental harm (whether this follows from policies, decisions or activities), decision-makers should be cautious.



59 McClellan CJ added in Murrumbidgee Ground-Water Preservation Association v Minister for Natural Resources [2004] NSWLEC 122 at [178] that the recognition of the precautionary principle in a number of NSW statutes has made it “a central element in the decision making process and cannot be confined.” He further emphasised that it must be utilised where there is a lack of scientific certainty (BGP Properties Pty Ltd v Lake Macquarie City Council [2004] NSWLEC 399; (2004) 138 LGERA 237)



60 In BT Goldsmith Planning Services v Blacktown City Council [2005] NSWLEC 210 Pain J said that the application of the precautionary principle ought not to be confined to a final decision as compared to a preliminary point of whether an SIS is required. Her Honour further stated that “decision makers must consider the precautionary principle whenever decisions are being made under an Act that adopts the precautionary principle.”



61 In Port Stephens Pearls Pty Limited v Minister for Infrastructure and Planning [2005] NSWLEC 426 I recognised that the principles of ecologically sustainable development must be a factor in the consideration of a development application and that the requirements of s 79C(1)(e) of the EPA Act, to take account of the public interest, included the application of the precautionary principle. I also adopted the approach that I would only consent to proposed development if there was a monitoring regime that would detect emerging adverse impacts and enable the appropriate authority to require them to be addressed if and when they emerged.



62 The applicant’s experts say that the restoration works offer the MRS the greatest chance of long term survival. The restoration works include habitat reconstruction that involve planting of 0.96ha, thereby linking two proximate areas of MRS habitat, and improving drainage channels. In addition, a program of regeneration and weed control and construction management techniques aim to preserve existing MRS habitat.



63 There is a great deal of uncertainty over the projected time in which the works would be capable of providing sufficient habitat. Dr Stanisic has estimated that it may take 5 to 15 years and Mr Parker has estimated 20 years. The Court has had the benefit of a short view of Stotts Island Nature Reserve an area of MRS habitat that was rehabilitated in 1986.



64 Mr Robertson submits that in accordance with the precautionary principle, action should be taken now so as to prevent the continuing decline of the MRS and its habitat on the site. Mr Robertson relies on the evidence of Dr Stanisic and Dr Smith who say that the “do nothing” alternative would most likely lead to extinction in the near future. Therefore in his submission, in accordance with the precautionary principle, lack of full scientific certainty in relation to the snail should not be used as a reason for postponing measures to prevent environmental degradation. Mr Robertson also says that the reference to “whether there is likely to be a significant effect” in s 5A means significantly adverse rather than significantly beneficial. It follows then that because the works are beneficial (by preventing the decline of the species) there is no significant effect within the meaning of s 5A.



65 On the other hand Mr Webster says that a proper application of the principle requires a consideration of the whole of the development application and requires the Court to acknowledge that there is scientific uncertainty regarding both the MRS and the proposed rehabilitation works. The Council further submits that absent scientific certainty there is a real prospect of harm and the precautionary principle therefore dictates a refusal in those circumstances.



Conclusion



66 It is evident from the above that there is a marked controversy between the witnesses. There is some uncertainty about the impact of the proposal. Notwithstanding Mr Parker’s lack of direct expertise and specific training in relation to the MRS, the opinions that he expresses regarding his observation on the site in the context of a habitat for the MRS and the nature of the proposed development raise considerable doubt in my mind as to whether the proposal will enhance the prospect of the survival of the species, as the applicant’s experts claim, and also whether it must be accepted that absent the carrying out of the development in the manner proposed the local population on the subject land will necessarily become extinct. The evidence, at this point, has not convinced me that the applicant’s scheme for improving the habitat of the species and hence the chance of the survival of the MRS will be successful. There is no certainty that this will occur. It is conceded by Dr Stanisic that little is known about the work done in rehabilitation areas. That, in my opinion, raises the requisite degree of uncertainty that the effect of the development can be ameliorated by the proposed restoration. It therefore leaves open the question of what other alternatives exist apart from the “do nothing option” and the ultimate doom of the MRS in any event.



67 The potential for significant effect on the survival of MRS across the site during the interim period, before the rehabilitation program begins to provide a long term benefit, is in my opinion high. In that context the development is likely to significantly affect the threatened species. By the time the restoration scheme is in operation the MRS may not exist on the site. The applicant’s argument that extinction is likely to occur even if nothing is done only reinforces my concern that the carrying out of development is likely to have a significant effect by accelerating that process. An SIS will greatly assist the decision making process in that respect. As I have already noted the nomadic nature of the MRS compounds the problem.



68 My conclusion is that there is MRS habitat on the site and that the development is likely to significantly affect the population of MRS on the site. It is not necessary to descend to Mr Parker’s approach by treating the behaviour of each snail as critical to assessment or to treat every conceivable location where the snail is found as habitat. It is nevertheless important to recognise that the members of the population of MRS may meander through parts of the site not regarded technically as habitat and that disturbance of those other areas may result in a “real chance” or “possibility” that there will be a significant effect on the species.



69 It follows that the test posed under s 78A(8)(b) of the EPA Act is satisfied and that accordingly a species impact statement in accordance with Division 2 of Part 6 of the TSC Act is required before the development application can be determined.



70 The exhibits will be retained until after final judgment.