leatch v. national parks and wildlife service

8/13/2019 Leatch v. National Parks and Wildlife Service

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Leatch v.National Parks and Wildlife Service

(Before the Land and Environment Court of New South Wales)

Facts:

1. The Shoalhaven City Council had been contemplating the making of a link road, themaking of which was justified.

2. The Council made an application to itself for the construction of this road. This wassubmitted by a review of the environmental factors. The review concluded that

although there were four alternative routes, this one had the most overall benefits and

acceptable environment impacts.

3. The review identified a number of rare plant species growing along this route, anexample is the Eucalyptus Iangleyi. The Zierla bacuerlenii (Rutaceae) is a rare and

endangered plant occurring only in this area, meaning, it is found nowhere else in the

world. However, the review stated that the impact to the fauna, such as the Yellow-

bellied Glider, would be negligible. At the same time, an assessment attached to the

review also stated that the northern alternative to this route would avoid damage to

these rare species.

4.

The Council approved of its own application and applied to the National Parks andWildlife Service for a license under Section 120 of the Act, to take or kill endangered

fauna. This was granted by the Service.

5. Pursuant to this, a number of public submissions were received, including the onefrom the present Appellant.

6. The Service had granted the license as this route was isolated from other areas ofsuitable habitat, and the impacts on the fauna were not considered enough to prevent

the construction of the road. Further, the long term development plans for this area

were likely to cause extinction of this fauna whether or not the road was constructed.

Judgement:

1. The Applicant submitted that the fauna impact assessment is invalid or legallyinadequate according to Section 92D (1)(c) of the National Parks and Wildlife Act,

1974 (NSW).


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2. In particular, it was submitted that there was a failure to include to the fullest extentreasonable practicable a description of how the fauna would be affected by such

actions. The Giant Burrowing Frog had not even been included in the report.

3. The Council, however, submitted that fauna impact statement can be amplified by anyfurther information sought or submitted. It was also contended that the standard

required for a fauna impact assessment was not as rigorous as that for an

environmental assessment.

4. The Court examined the accompanying documents of the report, such as given in theexplanatory note, and rejected them, as they were of no assistance in furthering the

construction project.

5. Further, the Court also held that if the environment impact assessment had beencorrectly prepared as per the Environment Planning and Assessment Act, no further

fauna impact statement is required. The Court held that the same tests of adequacy

that apply to the environment impact assessment should apply here as well.

6. The Appellant also contended that the provisions of Section 92B(6) of the Act allowthe Director-General of the Council to gather further information, as may be required,

but operate based on an assumption of adequacy of the report. The Court came to the

conclusion that such reports are not decisions by themselves and the decision-maker

can seek further information as required. Each new fauna did not require a separate

report, but the addition of such fauna should be advertised properly so that the general

public can raise objections, if need be.

7. The Court also held that the fauna impact assessment, read with the additionalinformation, satisfied the tests of being legally valid under the Act. Accordingly, the

Court then proceeded to review the merits of the Application.

8. The Court mentioned that the question was whether the precautionary principle, iffound relevant, may be raised in Appeal. This principle has been referred to in the Rio

Declaration on Environment and Development, the UN Framework Convention on

Climate Change and the 1992 Convention on Biological Diversity, the last of which

Australia has signed and ratified.

9. The Endangered Species Protection Act, 1992, by Section 175, makes provisions forgiving effect to international agreements specified by Schedule 4 of this Act. The

1992 Convention is not a part of this Schedule. However, the precautionary principle

has been incorporated into the Commonwealth strategies on Endangered Species and


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Biological Diversity and in the 1992 Interngovernmental Agreement on the

Environment.

10.It is also there in the Protection of the Environment Administration Act, 1991 (NSW).The Respondent tried to make submissions on the application of international law to

domestic law. However, the Court held that this principle is a matter of commonsense.

It is directed towards the prevention of serious or irreversible harm to the environment

in situations of scientific uncertainty. Where there is uncertainty, decision-makers

should be cautious when formulation policy.

11.The Court next went on to examine the relevance of the precautionary principle to theNational Parks and Wildlife Act. Where the consideration of a particular general

principle is not specifically barred by the Act, it may be relevant if an examination of

the scope and subject-matter shows it to be so.

12.In following Pt 7 of the Act, the Director-General is the authority appointed under theAct to protect and care for the fauna. To this end, the scientific committee, the

Director-General and the Court have to have regard for the population, distribution,

habitat destruction and ultimate security of a species. These are to be assessed under

the fauna impact statement.

13. This makes it clear that the precautionary principle can be read into this Pt.14.Examining the available material as regards the Giant Burrowing Frog, there is a derth

of knowledge in this area. It is known with reasonable certainty that there is a

population of frogs in this area, and that they are known to move great distances from

their habitat which searching for food at night. The Respondents contended that this

area is not the prime habitat for the species and that any impact had on them here

would be negligible.

15.The Appellant disagreed, stating that while this species is very difficult to find, it is arare and vulnerable species and so, its conservation must be given priority. The Court

agreed with the Appellant, stating that this frog is known only in a small number of

locations. Since the size and locations of the habitat are difficult to ascertain, the

impact of the road construction cannot be ascertained either.

16.In cautiously applying the precautionary principle, the Court held that where notmuch is known about a species, the best approach is to not grant licenses for its

killing. Further, this frog has only recently been identified as an endangered species.

Therefore, the license, as far as it regards the Giant Burrowing Frog, was refused.


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17.The other principal species involved in the license application is the Yellow-belliedGlider. This is undoubtedly present in this area. Its primary source of food in this area

is the eucalyptus present there, however, it is also known to cross to the woodland for

food and the construction of this road might impede this journey.

18.The Yellow-bellied Glider has been listed as a species of special concern ever sincethis Act had been passed. It was placed as vulnerable and rare. Scientific evidence

shows that it is likely that this population found in this area has been isolated from

other members of its species for some years now. It is likely that the road will further

split and isolate this species. On the other hand, the Council contended that other

development taking place in the area would do this anyway.

19.The evidence leads to the inevitable conclusion that the construction of the road willmean that this species will be adversely affected and this is agreed on by both parties.

This is why the license asks for permission to take or kill this species, as per Section

15 of this Act.

20.According to the Court, a license should not, in most cases, be general as to theendangered species it covers, but should specify the species and this is accepted by

the Respondent. The license in question is for ten years, but according to the Court,

five years is appropriate, due to possible changes in the physical environment and

state of scientific knowledge.

21.When granting a license, it is necessary to have a balance of considerations. Thebalance here is between the necessity of the road and the conservation of the species.

The Court was satisfied that there was a need for this link road. Public interest

includes both the construction of this link road as well and the preservation of the

fauna.

22.Having considered this, what is important next is whether there are suitablealternatives that serve both purposes. In this case, one alternative was there, a northern

route. This would help in the protection of the fauna. However, the Council was

reluctant to use this route because it was not economically feasible. This was rejected

by the Court, which opined that the real reason was that this road would be less likely

to be used.

23.However, the Court concluded that the only difference that would effectively arisebetween the proposed road and the alternative is that of two minutes. Two minutes is

not an expense to preserve an area of natural fauna and habitat, a resource used by the

very same community.


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24.Further, in assessing the alternative routes, the Council had not assessed the impact ofthe construction on the natural habitat in that area. According to the Court, this purely

economical assessment of the alternatives neglected to include natural values means

that the northern route was screened too early in the process to be considered

properly. Therefore, the license was refused as regards the Yellow-bellied Glider as

well.

25.Though the Court refused to grant the applied for license, it was also emphasised thatrefusal of this license application should not necessarily be assumed to be an end of

the proposal. Further information on endangered fauna and advances in scientific

knowledge may mean that a license can be granted in the futur

leatch v. national parks and wildlife service

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