FEDERAL COURT OF AUSTRALIA

Save Wallum Incorporated v Clarence Property Corporation Ltd (No 5) [2026] FCA 1315

ORDERS

THE COURT ORDERS THAT:

1.    The Amended Originating Application dated 30 September 2024 be dismissed.

2.    Costs are reserved.

THE COURT NOTES THAT:

3.    The parties are to liaise with a view to agreeing, if possible, the orders as to costs or, alternatively, a timetable within which submissions as to costs are to be filed and served.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

PERRY J:

1.    INTRODUCTION

1 The applicant, Save Wallum Incorporated, seeks a permanent injunction under s 475(2) of the Environment Protection and Biodiversity Conservation Act 1999 (Cth) (EPBC Act) to restrain the respondents from carrying out or authorising the carrying out of development works on land at 15 Torakina Road, Brunswick Heads, NSW (the Land, also referred to as the Site) or carrying out slashing works on the Land pending any grant of approval under Pt 9 of the EPBC Act.  The Land lies immediately to the south of an existing urban subdivision and is not in its natural, undisturbed state.

2 The objects and purposes of Save Wallum include the preservation and conservation of the environment.  Its primary aim since incorporation has been the conservation and protection of the natural environment of the Land.  The applicant’s standing to bring the present proceeding under s 475 of the EPBC Act is not in issue.

3 The applicant seeks relief on the ground that the respondents are proposing to take action that “is likely to have a significant impact on” listed threatened species in contravention of ss 18(2)(b), 18(3)(b) and 18(4)(b) of the EPBC Act.  The applicant does not allege that the proposed conduct “has or will have a significant impact” within the meaning of subsection (a) of each of ss 18(2), (3) and (4).  A contravention of s 18 would sound in liability for a civil penalty (cf s 18A, which provides for criminal offences).  If the applicant’s claim is upheld, the result is that the approval that has been given by the Northern Regional Planning Panel of NSW to the development works would not suffice and approval would be required by the Commonwealth Minister for the Environment and Water under Pt 9 of the EPBC Act in respect of the listed threatened species in question.

4 The first and second respondents, Clarence Property Corporation Limited and Bayside Brunswick Pty Ltd, which are related companies, seek to develop the Land pursuant to a development approval issued by the relevant “consent authority”, the Northern Regional Planning Panel, under Pt 4 of the Environmental Planning and Assessment Act 1979 (NSW) (EP&A Act (NSW)).  Specifically, on 16 May 2023, the Planning Panel granted approval under s 4.16(1)(a) of the EP&A Act (NSW) for a staged subdivision by the respondents to create 123 residential lots, three medium density lots, and one public reserve, together with associated vegetation management works, earthworks and construction of infrastructure, in seven stages subject to numerous conditions (Consent).  Also included in the development are several management zones which are conservation zones.  Save where otherwise indicated, Development is defined by reference to the Consent granted on 16 May 2023 under Pt 4 of the EP&A Act (NSW), which provides for a residential subdivision in seven stages, comprising:  123 residential lots, three medium-density lots, and one public reserve together with associated public roads and infrastructure services (water, sewerage, drainage and stormwater management works, bulk earthworks, tree removal and vegetation management works).

5 Conditions with which the respondents were required to comply prior to the issue of the Subdivision Works Certificate – early Stage 1 included those directed towards: (a) managing impacts on the South-eastern Glossy Black Cockatoo, Koala, and wallum froglet; (b) detailing the ongoing management of the Mitchell’s Rainforest Snail habitat and its long-term protection; (c) monitoring of surface and groundwater; and (d) for the restriction of breeding opportunities for the introduced Cane Toad Rhinella marina, planting of dense sedges along watercourses.  The approval followed a lengthy process of consideration.  Subsequently, a peer-reviewed due diligence assessment process was undertaken which concluded that no referral was required under the EPBC Act, which was communicated to the Department of Climate Change, Energy, the Environment and Water and received, as the respondents contend, without demur.

6 On 1 March 2024, after the approval of various management plans required by those conditions, Byron Shire Council granted a certificate permitting the respondents to proceed with “Early Stage One (1) Environmental Works including Weed Control, Ecological Restoration and Planting Only” (the Subdivision Works Certificate).

7 The design and management principles for the approved development are described in the “Wallum Estate, Torakina Road, Brunswick Heads, Lot 13 DP 1251383. Early Works Stage 1, Construction Environmental Management Plan” (CEMP) and are set out in detail in the various management plans, which I set out in detail in section 6 below.

8 Compliance with the CEMP and the management plans is a condition of the Consent.

9 The respondents deny that any significant impact on the listed threatened species is likely to occur and therefore that there is any requirement for approval to be sought with respect to the Development under the EPBC Act.

10 Since 4 July 2024, an interlocutory injunction and subsequent undertakings provided by the respondents have prevented all but a few limited activities on the Land.

11 The central question is whether the Development and continued slashing of native vegetation on the Land will, or is likely to, have a significant impact on the five listed threatened species under the EPBC Act contrary to s 18 of the EPBC Act, namely:

(1)    the Wallum Sedge Frog (Litoria olongburensis) (WSF), the Long-nosed Potoroo (Potorous tridactylus tridactylus) (LN Potoroo, also referred to as the LNP in various documents), and the South-Eastern Glossy Black Cockatoo (Calyptofhynchus lathami lathami) (SEGB Cockatoo, also referred to as the SEGBC in various documents), which are each in the vulnerable category under the EPBC Act;

(2)    the Koala (Phascolarctos cinereus) which is a listed threatened species in the endangered category under the EPBC Act; and

(3)    the Mitchell’s Rainforest Snail (Thersites mitchellae) (MRS) which is in the critically endangered category under the EPBC Act.

(Together, the relevant listed threatened species.)

12 If the Development is likely to have a significant impact on any one or more of the relevant listed threatened species, it must be referred to the Minister under the EPBC Act.

13 In summary, the Court has found that the applicant has failed to establish that the Development is likely, in the sense of a real and not remote possibility, to have a significant impact on any of the relevant listed threatened species.

14 In so finding, I note that there are a number of recurrent difficulties with the applicant’s case which it is helpful to identify at the outset, bearing in mind that the ultimate question of whether the Development is likely – in the sense of a real and not remote possibility – to have a significant impact on any of the listed threatened species is addressed holistically, ie, having regard to all of the relevant facts.

(1)    The applicant seeks to address the statutory question of whether there will be a significant impact by adopting a “snapshot” approach in that it focuses on the proposed Development as if it were a rigid proposal.  That approach fails give proper regard among other things to: (a) the monitoring and reporting obligations in the Consent, and management plans; (b) the obligation to take remedial action in the event of non-compliance with key performance indicators (KPIs); and (c) the flexible and adaptable nature of the comprehensive regime established by the Consent in response to the inherent complexity and unpredictability of environmental outcomes on particular localities by actions such as the Development.  As to the last of these points, while modelling can assist in predicting likely or possible outcomes, it necessarily relies on assumptions and the perimeters set by the program and/or operator and cannot provide absolute certainty.

(2)    The applicant repeatedly reverses the onus of proof, effectively requiring the respondents to prove that there will be no significant impact on the listed threatened species if particular steps are not taken.  One example is the applicant’s criticism about the modelling used by the respondents’ experts on the basis that it did not adequately accommodate future climatic conditions in assessing whether the artificial ponds for the WSF would likely succeed.  However, these criticisms effectively amount to recommendations as to ways in which the modelling could potentially have been improved, without providing alternative modelling demonstrating that the artificial ponds would not withstand future climatic conditions and that measures intended to mitigate adverse impacts from the Development would likely fail.  Another example is the applicant’s criticisms of the failure to include a buffer zone of 100m between the Development and MRS habitat as recommended in the MRS conservation advice, while ignoring all of the other strategies intended to mitigate adverse impacts from the Development on MRS (and other listed threatened species’) habitat.

(3)    The applicant repeatedly fails to have regard to the fact that, in many respects, the Development is likely to, or may, enhance recovery of local populations of the listed threatened species.  One example is the applicant’s criticisms of the Development on the basis that the construction of a pathway through MZ-2 to Simpsons Creek will facilitate incursions by adventurous children and cane toads into habitat intended to be protected, without having regard to the totality of the mitigation strategies directed towards discouraging incursions by humans and cane toads into habitat in the management zone.  Related to this, the question of whether an action is likely to have a significant impact in the statutory sense cannot be approached in a vacuum as if the species’ habitat on the Land was ideal prior to any action taking place on the Land, such that the Development will necessarily disturb that ideal habitat. Thus, for example, the applicant’s criticisms of the proposed Simpsons Creek pathway ignore the fact that in its present state, there are numerous compacted sandy tracks into MZ-2 which are to be ripped to allow revegetation as part of the Development.

(4)    The applicant takes a recommendation in the relevant conservation advice for a listed threatened species as if it established a rule and a failure to follow that recommendation will necessarily establish that a significant impact on a listed threatened species is likely.  However, that approach ignores other measures which are intended to mitigate adverse impacts on the species.  The recommendation of a 100m buffer in the MRS conservation advice which the applicant submits is mandatory, while ignoring other mitigating measures, also illustrates this difficulty with the applicant’s approach in this regard.

(5)    The applicant also seeks to rely upon speculative possibilities, such as those posited by the metapopulation theory advocated by Associate Professor Grant Wardell-Johnson (A/Prof Wardell-Johnson).  Under that theory, effectively all populations of a listed threatened species are important populations because at some unknown time in the future due to unknown events, they may become so.

15 It is also important to note that the objects of the EPBC Act strike a balance between the protection of the environment on the one hand, and sustainable development on the other hand.  Development approvals ordinarily proceed under State law, and the involvement of the Commonwealth in environmental regulation is limited.  Thus, contrary perhaps to the applicant’s expectations, even if I were to decide that the Development should referred to the Commonwealth Minister, this would not necessarily mean that the Development would not proceed or that any further or different conditions would be imposed.  That would be a matter for the Commonwealth Minister to decide.  In this case, the Development was approved under State planning law.  That is a comprehensive regime which imposes strict conditions including obligations to monitor impacts as the Development progresses and after completion, and to take action in the event that KPIs are not achieved, as I explain in detail in my reasons.

16 Finally, I note that the Development was not required to be approved under the Biodiversity Conservation Act 2016 (NSW) (BC Act NSW) because it was the subject of a concept plan approved in 2013, which entitled the respondents to a transitional certificate under cl 34A of the Biodiversity Conservation (Savings and Transitional) Regulation 2017 (NSW) on the basis that the concept plan had been approved, and the conservation measures in the concept plan had been “secured into the future”: cl 34A(3)(b).

2.    PROCEDURAL HISTORY

17 The relevant procedural history can be shortly stated.  This proceeding was commenced on 3 July 2024 by way of an originating application, together with a statement of claim.  The applicant seeks a permanent injunction under s 475(2) of the EPBC Act to restrain the first and second respondents from carrying out or authorising the carrying out of development works on the Land.

18 On 4 July 2024, the applicant filed an interlocutory application, seeking an injunction under s 475(5) of the EPBC Act to restrain the respondents and their agents from carrying out the Development until further order (Temporary Development Injunction).  The same day, Justice Raper (as duty judge) made orders, restraining the respondents and their agents from carrying out or authorising the carrying out of the Development until further hearing and determination of the application for the Temporary Development Injunction.

19 On 23 August 2024, Justice Bromwich granted the Temporary Development Injunction, with orders entered on 30 August 2024 restraining the respondents and their agents from undertaking all but limited Development on the Land pending the final determination of the applicant’s permanent injunction application: Save Wallum Incorporated v Clarence Property Corporation Limited [2024] FCA 967.

20 The applicant made two amendments to its statement of claim on 29 July 2024 and 30 September 2024 which expanded the relief sought to include injuncting the respondents from carrying out slashing works on the basis that the slashing works constitute an action likely to have significant impact on the relevant listed threatened species.

21 On 29 January 2025, the respondents filed an interlocutory application seeking leave to file and serve a second further amended defence which included a defence under s 43B of the EPBC Act in relation to the slashing works. On 6 February 2025, I granted leave to the respondents to file a second further amended defence to raise the s 43B Defence:  Save Wallum Incorporated v Clarence Property Corporation Limited (No 2) [2025] FCA 56.

22 On 3 February 2025, the applicant filed an interlocutory application, seeking to restrain the respondents from carrying out the slashing works until the hearing and determination of the proceeding under s 475(5) of the Act (Temporary Slashing Works Injunction).

23 The matter was listed for hearing from 21 February to 3 March 2025 (altogether 7 days) during which the Court sat extended hours.

24 On 7 March 2025, the applicant and respondents filed submissions with respect to the Temporary Slashing Works Injunction.

25 On 11 March 2025, I delivered judgment, refusing the applicant’s oral application for leave to recall Dr Richard Cresswell and Dr Amir Hedjripour: Save Wallum Incorporated v Clarence Property Corporation Limited (No 3) [2025] FCA 166.  For completeness, I note that, while it was intended that there would be a hearing before me on the same day with respect to the Temporary Slashing Works Injunction, the hearing of that interlocutory application was delayed on account of the respondents extending their undertaking (to refrain from carrying out slashing works) until 30 May 2025.

26 On 14 March 2025, I made consent orders, listing the proceeding for further hearing: on 10 April 2025 for evidence on the MRS; on 28 – 30 April 2025 for the remaining ecological expert evidence; on 1 – 2 May 2025 for the s 43B Defence; and on 26 – 27 May 2025 for closing submissions.

27 On 21 March 2025, the respondents filed a proposed schedule of evidence to be excluded based on my ruling with respect to Mr David Milledge made at the hearing on 28 February 2025.

28 On 9 April 2025, the applicant filed submissions in support of its interlocutory application to set aside my ruling excluding Mr Milledge’s opinion evidence on the ground that it was inadmissible, contending instead that the matters on which the respondents had relied in support of their contention that the evidence was inadmissible were instead relevant only to weight.

29 The matter was listed for a resumed hearing on 10 April 2025 to hear the MRS evidence. However, given A/Prof Wardell-Johnson’s condition, the hearing of that evidence was deferred. The applicant’s application for leave to set aside the evidential ruling excluding the opinion evidence of Mr Milledge was, instead, heard.

30 On 17 April 2025, the applicant filed a list of unresolved objections to the respondents’ evidence (which was filed between 22 January 2025 and 15 April 2025).

31 On 22 April 2025, I delivered judgment, granting leave to re-open the evidential ruling made on 28 February 2025 excluding the opinion evidence of Mr Milledge and setting it aside on the ground that relevant authority establishing that the evidence was in fact admissible had not been drawn to my attention: Save Wallum Incorporated v Clarence Property Corporation Limited (No 4) [2025] FCA 389.

32 On 26 and 27 May 2025, final oral submissions were made.

33 On 15 December 2025, the Temporary Slashing Works Injunction was dismissed by consent by the duty judge on the basis of the respondents’ undertaking not to conduct slashing works until the delivery of judgment in the proceedings, other than limited mowing and/or whipper snipping near the northern boundary of the Land.

3.    LEGISLATIVE FRAMEWORK AND APPLICABLE PRINCIPLES

3.1    Relevant provisions of the EP&A Act (NSW) pursuant to which the Consent was given and conditions imposed

34 Part 4 of the EP&A Act (NSW) provides for the assessment of, and provision of consent to, “development” as defined in s 1.5 of that Act.

35 Consent was required by virtue of s 4.2(1) of the EP&A Act (NSW) for the development to be carried out.  The Planning Panel, as the applicable “consent authority”, is empowered to make a determination to grant unconditional consent, or consent subject to conditions, to a development application:  s 4.16(1)(a) of the EP&A Act (NSW).  Conditions may be imposed under ss 4.16 and 4.17 of the EP&A Act (NSW) with respect to any of the matters which the consent authority is required to take into consideration under s 4.15.  This includes matters with respect to the provisions of any environmental planning instrument, likely significant impacts of the development including environmental impacts, the suitability of the site for development, and the public interest.

36 Section 4.2 of the EP&A Act (NSW) requires that a development be carried out in accordance with the consent, and non-compliance with which may result in criminal penalties (Div 9.6, especially ss 9.51 and 9.52), civil enforcement proceedings (Div 9.5), or development control orders (s 9.34 of the EP&A Act (NSW) and Sch 5 thereto).

37 Among other things, condition 20 of the Consent required entry into a voluntary planning agreement (VPA) between the Council and the second respondent dated 16 February 2023 prior to the issue of the subdivision works certificate.  The VPA, made under s 7.4 of the EP&A Act (NSW), contains conditions as to the dedication of land to the Council free of cost and the payment of monetary contributions to be applied towards a public purpose, as later explained.  A breach of the VPA can be enforced as a breach of the EP&A Act (NSW) pursuant to s 9.44(b)(vi), and the New South Wales Land and Environment Court may make such order as it thinks fit to remedy or restrain the breach.

3.2    The scope and objects of the EPBC Act

38 In certain cases, approval under State law may not be sufficient to enable a development to proceed lawfully, as the applicant contends is the case here.  Approval will be required under Pt 9 of the EPBC Act for proposed actions likely to have a significant impact on matters regarded by the Commonwealth as being of national environmental significance including, relevantly, listed threatened species and ecological communities.  Approval will also be required for Commonwealth actions or actions likely to have a significant impact on Commonwealth land.  Thus, it is an object of the EPBC Act “to provide for the protection of the environment, especially those aspects of the environment that are matters of national environmental significance”: s 3(1)(a) of the EPBC Act.

39 The objects of the EPBC Act are set out in s 3(1) and include:

(b)    to promote ecologically sustainable development through the conservation and ecologically sustainable use of natural resources; and

(c)    to promote the conservation of biodiversity; and

…

(d)    to promote a co-operative approach to the protection and management of the environment involving governments, the community, land-holders and indigenous peoples; and

(e)    to assist in the co-operative implementation of Australia’s international environmental responsibilities…

40 In order to achieve its objects, and consistently with the Commonwealth’s statutorily limited jurisdiction over environmental matters, s 3(2) provides that the EPBC Act:

(a)    recognises an appropriate role for the Commonwealth in relation to the environment by focussing Commonwealth involvement on matters of national environmental significance and on Commonwealth actions and Commonwealth areas; and

(b)    strengthens intergovernmental co-operation, and minimises duplication, through bilateral agreements; and

(c)    provides for the intergovernmental accreditation of environmental assessment and approval processes; and

(d)    adopts an efficient and timely Commonwealth environmental assessment and approval process that will ensure activities that are likely to have significant impacts on the environment are properly assessed; and

(e)    enhances Australia’s capacity to ensure the conservation of its biodiversity by including provisions to:

(i)    protect native species (and in particular prevent the extinction, and promote the recovery, of threatened species) and ensure the conservation of migratory species; and

…

(iii)    protect ecosystems by means that include the establishment and management of reserves, the recognition and protection of ecological communities and the promotion of off-reserve conservation measures; and

(iv)    identify processes that threaten all levels of biodiversity and implement plans to address these processes; and

…

(g)    promotes a partnership approach to environmental protection and biodiversity conservation through:

(i)    bilateral agreements with States and Territories; and

(ii)    conservation agreements with land-holders; and

(iii)    recognising and promoting indigenous peoples’ role in, and knowledge of, the conservation and ecologically sustainable use of biodiversity; and

(iv)    the involvement of the community in management planning.

(Emphasis added.)

41 Relevantly, as to s 3(2)(g)(i), the relevant Ministers on behalf of the Commonwealth and New South Wales entered into a bilateral agreement for environmental assessment under s 45 of the EPBC Act on 26 February 2015.  The bilateral agreement was amended on 24 March 2020 to respond to changes in NSW legislation.  Under the agreement, the Commonwealth Minister can use the NSW process to inform an assessment of the impacts of any eligible action.  The NSW Biodiversity Offsets Scheme, which includes the Biodiversity Assessment Method (BAM), was endorsed in the bilateral agreement.  I explain the significance of the BAM later in Part 3.8 below.

3.3    Prohibition on taking a controlled action absent an approval under Pt 9 of the EPBC Act

42 The EPBC Act is designed to ensure that a proposal to take an action – which may be a controlled action requiring approval – is referred to the Commonwealth Minister.  A “controlled action” is defined in s 67 as follows:

An action that a person proposes to take is a controlled action if the taking of the action by the person without approval under Part 9 for the purposes of a provision of Part 3 would be (or would, but for section 25AA or 28AB, … be) prohibited by the provision. The provision is a controlling provision for the action.

(Emphasis in the original.)

43 In other words, a controlled action is an action which is prohibited by the EPBC Act, save, relevantly, where an approval for the taking of the action by the person is in operation under Pt 9 of the Act or there is a decision of the Minister in force under Div 2 of Pt 7 that the statutory prohibition “is not a controlling provision for the action”.  Division 1 of Pt 3 of the EPBC Act contains the “controlling provisions” with respect to specified matters of national environmental significance.  These include prohibitions under ss 18 and 18A on an action which is likely to have a significant impact on listed threatened species or listed threatened ecological communities.  The “controlling provision” on which the applicant relies in this case is s 18, which is examined shortly.

44 Section 67A prohibits a person from undertaking a controlled action unless an approval is in operation.  As the note to s 67A provides, a person can be restrained from contravening this provision by an injunction under s 475, as the applicant seeks in this case.

45 In addition, s 68 imposes an obligation upon the person to refer proposed actions to the Minister even though the action may not be a controlled action, but where the person simply thinks that it might be a controlled action.  Furthermore, a person may refer an action to the Minister for “the avoidance of doubt” even if the person does not think that the action is a controlled action.  With respect to the last of these possibilities, Kiefel J (as her Honour then was) observed in Queensland Conservation Council Inc v Minister for the Environment and Heritage [2003] FCA 1463 at [12] that “[w]hilst a person has a choice whether to refer a proposed action, in circumstances where they do not think the action is one controlled by the provisions of Part 3, they may be at risk of offending.”

46 The process for obtaining approval is set out in Ch 4 of the EPBC Act and generally involves three stages: deciding whether approval is needed (Pt 7); assessing the impacts of “controlled actions” (Pt 8); and making decisions on the approval and conditions (Pt 9).  Section 136 of Subdiv B of Pt 9 requires the Minister – in deciding whether or not to approve an action – to consider (among other things) economic and social matters and the principles of ecologically sustainable development.  The latter are set out in s 3A which provides that:

The following principles are principles of ecologically sustainable development:

(a)    decision-making processes should effectively integrate both long-term and short-term economic, environmental, social and equitable considerations;

(b)    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;

(c)    the principle of inter-generational equity—that the present generation should ensure that the health, diversity and productivity of the environment is maintained or enhanced for the benefit of future generations;

(d)    the conservation of biological diversity and ecological integrity should be a fundamental consideration in decision-making;

(e)    improved valuation, pricing and incentive mechanisms should be promoted.

(Emphasis in original.)

47 In addition, s 139 of Subdiv B of Pt 9 makes specific provision for the Minister to have regard to certain matters in deciding whether or not to approve the taking of an action for the purposes of s 18 or s 18A.  First, s 139(1) provides that the Minister must not act inconsistently with Australia’s obligations under specified international conventions, including the Biodiversity Convention, or with a recovery plan or threat abatement plan.  Secondly, where the action is likely to have a significant impact on a particular listed threatened species or ecological community, the Minister must also have regard to any approved conservation advice for the species or community: s 139(2) of the EPBC Act.

3.4    Subdivision C, Div 1, Pt 3 of the EPBC Act: “Listed threatened species and communities”

48 Subdivision C of Div 1 of Pt 3 headed “Listed threatened species and communities” is comprised of ss 18, 18A and 19.  Critically, s 18 prohibits a person from taking an “action” that has, or is likely to have, a “significant impact” on a “listed threatened species” that is included in any of the following categories:

(1)    the “extinct in the wild category”;

(2)    the “critically endangered category”;

(3)    the “endangered category”; or

(4)    the “vulnerable category”.

49 Nor, under sub-sections 18(5) and (6) respectively, can a person take an “action” that has, or is likely to have, a “significant impact” on a “listed threatened ecological community” included in the “critically endangered category” or the “endangered category”.  I later explain what is meant by the phrase “likely to have a significant impact”.

50 A contravention of s 18 can sound in civil penalties or, under s 18A, constitutes a criminal offence.

51 However, sub-sections 19(1) and (2) provide that the prohibitions in ss 18 and 18A do not apply where an approval is in place for the action which relates to the listed threatened species in question.  Specifically, s 19 relevantly provides that:

(1)    A subsection of section 18 or 18A relating to a listed threatened species does not apply to an action if an approval of the taking of the action by the person is in operation under Part 9 for the purposes of any subsection of that section that relates to a listed threatened species.

(2)    A subsection of section 18 or 18A relating to a listed threatened ecological community does not apply to an action if an approval of the taking of the action by the person is in operation under Part 9 for the purposes of either subsection of that section that relates to a listed threatened ecological community.

52 Nor by operation of s 43B(1) of the EPBC Act is a person prohibited from taking an action described in ss 18 and 18A without a Pt 9 approval if the action “is a lawful continuation of a use of land” that was occurring immediately before the commencement of the EPBC Act.  Section 43B(1) is relied upon by the respondents in defence of their actions in undertaking slashing works on part of the Land.

53 The Explanatory Memorandum to the Environment Protection and Biodiversity Conservation Bill 1998 explains that s 18 was implemented to “discharge Australia’s international responsibilities, including obligations under the Convention on Biological Diversity”: at [49].  Article 8 of the Convention on Biological Diversity, opened for signature 4 June 1992, 1760 UNTS 79 (entered into force 29 December 1993) obliges Australia, as far as possible and as appropriate, to:

(1)    “Rehabilitate and restore degraded ecosystems and promote the recovery of threatened species, inter alia, through the development and implementation of plans or other management strategies”: Art 8(f);

(2)    “Develop or maintain necessary legislation and/or other regulatory provisions for the protection of threatened species and populations”: Art 8(k); and

(3)    “Where a significant adverse effect on biological diversity has been determined pursuant to Article 7, regulate or manage the relevant processes and categories of activities”: Art 8(l).

54 Certain significant terms in s 18 are defined in the Act.  First, the term “action” is defined in s 523 as including:

(a)    a project; and

(b)    a development; and

(c)    an undertaking; and

(d)    an activity or series of activities; and

(e)    an alteration of any of the things mentioned in paragraph (a), (b), (c) or (d).

55 As such, the term “action” “is defined in wide terms”: Queensland Conservation Council at [9] (Kiefel J).

56 Secondly, “impact” is defined in s 527E(1) as follows:

For the purposes of this Act, an event or circumstance is an impact of an action taken by a person if:

(a)    the event or circumstance is a direct consequence of the action; or

(b)    for an event or circumstance that is an indirect consequence of the action—subject to subsection (2), the action is a substantial cause of that event or circumstance.

(Original emphasis.)

57 Subsection 527E(2), in turn, provides as follows:

(2)    For the purposes of paragraph (1)(b), if:

(a)    a person (the primary person) takes an action (the primary action); and

(b)    as a consequence of the primary action, another person (the secondary person) takes another action (the secondary action); and

(c)    the secondary action is not taken at the direction or request of the primary person; and

(d)    an event or circumstance is a consequence of the secondary action;

then that event or circumstance is an impact of the primary action only if:

(e)    the primary action facilitates, to a major extent, the secondary action; and

(f)    the secondary action is:

(i)    within the contemplation of the primary person; or

(ii)     a reasonably foreseeable consequence of the primary action; and

(g)    the event or circumstance is:

(i)    within the contemplation of the primary person; or

(ii)    a reasonably foreseeable consequence of the secondary action.

(Emphasis in original.)

58 As I later explain, the parties differed in their positions as to the application of s 527E(2) to the consequences of urbanisation, to the extent it potentially involved secondary actions by persons other than the respondents, and the risk of invasive species.  The parties agreed that the overall impact of urbanisation from other developments in the Brunswick Heads area could not be attributed to the respondents.  The parties also accepted that urbanisation encouraging the presence of cane toads may be an indirect impact if it satisfies the criterion of a “substantial cause” in s 527E(1)(b).  However, the respondents submitted that the acts of individual residents in choosing whether to confine their rubbish bins or leave food scraps around would not be an impact of the subdivision.  The applicant submitted that the respondents’ conduct in constructing a neighbourhood resulting in associated lights, roads and nutrients would be a “substantial cause”, and that the conduct of third-party residents in leaving food scraps while conducting their day-to-day lives would be within the contemplation of the developer within s 527E(2)(f) and (g).   In my view, the respondents’ submission is plainly correct.  Such impacts are too remote.

3.5    Listed threatened species under the EPBC Act

59 Section 528 of the EPBC Act provides that a “listed threatened species” is a native species included in a list made by the Minister under s 178.  The list is made by the Minister by legislative instrument which is divided into different categories (extinct, extinct in the wild, critically endangered, endangered, vulnerable, and conservation dependent) according to criteria set out in s 179.

60 Relevantly, a native species is eligible to be included:

(1)    in the “critically endangered category” at a particular time if, at that time, “it is facing an extremely high risk of extinction in the wild in the immediate future”: s 179(3);

(2)    in the “endangered category” at a particular time if, at that time, “it is facing a very high risk of extinction in the wild in the near future”: s 179(4); and

(3)    in the “vulnerable category” at a particular time if, at that time, “it is facing a high risk of extinction in the wild in the medium-term future”: s 179(5).

61 With respect to the species in issue in these proceedings:

(1)    the WSF and the LNP were added to the list of threatened species in the vulnerable category by “Declaration under s 178, s 181 and s 183 of the Environment Protection and Biodiversity Conservation Act 1999”, dated 11 July 2000;

(2)    the MRS was added to the list of threatened species in the critically endangered category by “Inclusion of species in the list of threatened species under s 178 of the Environment Protection and Biodiversity Conservation Act 1999”, dated 4 July 2002;

(3)    the Koala was:

(a)    included in the list of threatened species in the vulnerable category by “Amendment to the list of threatened species under section 178 of the Environment Protection and Biodiversity Conservation Act 1999 (133)”, dated 27 April 2012; and

(b)    subsequently moved to the endangered category by “List of Threatened Species Amendment (Phascolarctos cinereus (combined populations of Queensland, New South Wales and the Australian Capital Territory) (280)) Instrument 2022”, dated 10 February 2022;

(4)    the SEGB Cockatoo was included in the list of threatened species in the vulnerable category by “List of Threatened Species Amendment (Calyptorhynchus lathami lathami (314)) Instrument 2022”, dated 24 July 2022.

3.6    Conservation Advice and Recovery Plans made under the EPBC Act

62 Section 266B of the EPBC Act requires the Minister to ensure that there is approved conservation advice for each listed threatened species (except one that is extinct or that is a conservation dependent species), and each listed threatened ecological community, at all times while the species or community continues to be listed.  Importantly, an approved conservation advice is a document that contains “information about what could appropriately be done to stop the decline of, or support the recovery of, the species”: s 266B(2)(b)(i). As such, Mortimer J (as her Honour then was) in Friends of Leadbeater’s Possum Inc v VicForests (No 4) [2020] FCA 704 at [25] described conservation advices as “the mandatory and foundational documents describing each threatened species, its characteristics and habitat, and the threats posed to it” and accorded significant weight to the relevant conservation advice in her fact-finding.

63 In addition, the Minister must decide whether to have a recovery plan for a listed threatened species or ecological community: s 269AA of the EPBC Act. A recovery plan must provide for the research and management actions necessary to stop the decline, and support the recovery, of the listed threatened species so that its chances of long-term survival in nature are maximised: s 270(1) of the EPBC Act.  Thus, Mortimer J in Friends of Leadbeater’s Possum gave the draft recovery plan relevant to that proceeding “considerable weight” (even though, for unknown reasons, the draft plan had not been given Ministerial approval).  This was because “its content is the product of expert input, including from those responsible for the administration of the conservation and biodiversity protection regime at federal level, and those responsible for both the conservation regime and the regulation of forestry operations at state level” and that, in that case, one of the recovery plan’s authors was called as an expert witness and therefore available for cross-examination: Friends of Leadbeater’s Possum at [1416].

64 Relevantly for this proceeding, wallum-dependent frog species are the subject of a national recovery plan dated 2006 covering the WSF (Litoria olongburensis), Cooloola sedge frog (L. cooloolensis), wallum rocket frog (L. freycineti) and wallum froglet (Crinia tinnula).  The Koala is also the subject of a national recovery plan (combined populations of Queensland, New South Wales and the Australian Capital Territory), dated March 2022.  In addition, the MRS is the subject of an approved recovery plan dated July 2001 which was prepared by the NSW National Parks and Wildlife Service under the Threatened Species Conservation Act 1995 (NSW).

65 Section 207A of the EPBC Act also requires the Minister to keep a register in which the Minister may list habitat identified as being critical to the survival of a listed threatened species or listed threatened ecological community.  The phrase “habitat critical to the survival of a species” is used in the “Matters of National Environmental Significance: Significant Impact Guidelines” (MNES Guidelines) (addressed below), and is defined in those guidelines.  This is not, however, a case where it is suggested that there is any critical habitat for a listed threatened species which may be impacted.

3.7    MNES Guidelines published by the Department of the Environment

66 In 2013, the Commonwealth Department of the Environment (as it then was) published the MNES Guidelines.  These were referred to extensively by the expert witnesses called by both sides in this proceeding, and accepted by the parties as establishing relevant criteria for assessing significant impact under s 18 of the EPBC Act, as I later explain.

67 Although the MNES Guidelines draw on the Environment Protection and Biodiversity Conservation Regulations 2000 (Cth) (EPBC Regulations), the MNES Guidelines are not given statutory force and do not themselves have any legal effect.  Thus, while the MNES Guidelines contain lists of so-called “criteria”, Mortimer J in Friends of Leadbeater’s Possum held, at [1321], that:

The use of the term “criteria” in the Guidelines has no magic about it.  It is clear they are not statutory criteria and should not be used in that way.  I do not consider the applicant’s case seeks to do that.  However, the Guidelines are issued by the department with responsibility for the administration of the EPBC Act.  The fact they are issued to guide potential proponents is neither here nor there, given the guidance they seek to give is on the statutory concept of significant impact in the provisions in issue in this proceeding.  It would [be] wrong, and impermissible, for the Court to rely on the contents of the Guidelines, and the criteria in particular, as some kind of checklist or exhaustive definition.  However the existence of the Guidelines should also not be ignored.  The examples in the “criteria” come from a knowledgeable source and are capable of assisting consideration and assessment of the application of what is otherwise a broad statutory concept.

68 I agree with her Honour’s findings as to the limited use which can be made of the MNES Guidelines and the lack of legal force to be afforded to the so-called criteria in those Guidelines.

69 Bearing these matters in mind, the MNES Guidelines list nine “significant impact criteria” for critically endangered and endangered species (ie the MRS and Koala), and for vulnerable species (ie the WSF, LN Potoroo and SEGB Cockatoo).  For vulnerable species, the relevant population is an “important” population, and the final criterion refers to interfering “substantially” with the recovery of the species. The definition of “important population” in the MNES Guidelines picks up the way in which that term is used in r 7.11(1)(c) of the EPBC Regulations, namely, a population that is necessary for a species’ long-term survival and recovery.

70 In relation to critically endangered and endangered species, the MNES Guidelines state:

An action is likely to have a significant impact on a critically endangered or endangered species if there is a real chance or possibility that it will:

* lead to a long-term decrease in the size of a population

* reduce the area of occupancy of the species

* fragment an existing population into two or more populations

* adversely affect habitat critical to the survival of a species

* disrupt the breeding cycle of a population

* modify, destroy, remove, isolate or decrease the availability or quality of habitat to the extent that the species is likely to decline

* result in invasive species that are harmful to a critically endangered or endangered species becoming established in the endangered or critically endangered species’ habitat

* introduce disease that may cause the species to decline, or

* interfere with the recovery of the species.

71 In relation to vulnerable species, the MNES Guidelines state:

An action is likely to have a significant impact on a vulnerable species if there is a real chance or possibility that it will:

* lead to a long-term decrease in the size of an important population of a species

* reduce the area of occupancy of an important population

* fragment an existing important population into two or more populations

* adversely affect habitat critical to the survival of a species

* disrupt the breeding cycle of an important population

* modify, destroy, remove or isolate or decrease the availability or quality of habitat to the extent that the species is likely to decline

* result in invasive species that are harmful to a vulnerable species becoming established in the vulnerable species’ habitat

* introduce disease that may cause the species to decline, or

* interfere substantially with the recovery of the species.

72 In respect of the fourth criterion listed in paragraphs 70 and 71 above, the MNES Guidelines draw on the criteria set out in reg 7.09 of the EPBC Regulations.  The MNES Guidelines state that “habitat critical to the survival of a species” refers to areas that are necessary:

(1)    for activities such as foraging, breeding, roosting, or dispersal

(2)    for the long-term maintenance of the species or ecological community…

(3)    to maintain genetic diversity and long term evolutionary development, or

(4)    for the reintroduction of populations or recovery of the species or ecological community.

73 Such habitat may be, but is not limited to: habitat identified as such in a recovery plan for the species; and/or habitat listed on the Register of Critical Habitat.

3.8    The Biodiversity Development Assessment Report and Biodiversity Assessment Method under the Biodiversity Conservation Act 2016 (NSW)

74 Finally, I referred earlier to the NSW Biodiversity Offsets Scheme which includes the BAM endorsed under a bilateral agreement entered into by the Commonwealth and NSW.  The BAM, as the respondents explain, is the legislated method to be used by accredited assessors to prepare a biodiversity development assessment report (BDAR), where required under the BC Act (NSW), which provides a consistent method for assessing biodiversity values.  A BDAR must be prepared for a proposed development where certain triggers are engaged, such as clearing native vegetation or local developments likely to affect threatened species, and must be completed by a person accredited to use the BAM.  A BDAR must identify:

(1)    the biodiversity values of the subject land;

(2)    how the proponent proposes to avoid and minimise biodiversity impacts; and

(3)    the offset obligation required to offset the residual biodiversity impacts of the proposed development.

75 A BDAR in this case was prepared under the BC Act (NSW) in accordance with the BAM by two accredited assessors from Australian Wetlands Consulting Pty Ltd (AWC) in April 2022 for the second respondent to support the proposed Development and was submitted to the Byron Shire Council as the consent authority.  Notwithstanding the applicant’s challenges to the survey methods employed by AWC, for reasons I later develop, I prefer the evidence of Mr Karl Robertson and Ms Alison Martin – who are accredited assessors – that the survey methods were carried out in accordance with the BAM.  By contrast, none of the applicant’s experts hold BAM accreditation.

76 The BDAR was required due to the proposed subdivision impacting land mapped as being of Biodiversity Value as per the Biodiversity Values Map and Threshold Tool.  The BDAR identified 12 threatened species at the site during the BDAR survey period including the Wallum Froglet (Crinia tinnula) (but not the WSF) and the SEGB Cockatoo (Calyptofhynchus lathami).  It also reported that the direct impacts of the proposed subdivision on known biodiversity values including the loss of approximately 12 ha of native vegetation, loss of habitat for threatened fauna, and loss of 20 hollow-bearing trees.  The BDAR recommended a range of mitigation measures to minimise potential biodiversity impacts associated with the proposal.

77 Ultimately, however, the BDAR was not required to be submitted for approval or relied on for the purpose of the development application because a cl 34A certification under the Biodiversity Conservation (Savings and Transitional) Regulation 2017 (NSW) was issued for the Development, which recognises offset arrangements made before the commencement of Pt 7 of the BC Act (NSW).  The cl 34A certification states the biodiversity impacts of the Development were satisfactorily assessed under the concept plan approval.

4.    KEY PRINCIPLES AND CONCEPTS: ASSESSING WHETHER THE PROPOSED ACTION IS “LIKELY TO HAVE A SIGNIFICANT IMPACT” ON A LISTED THREATENED SPECIES

78 The relevant principles were not in issue and may be summarised as follows.

79 First, the onus lies on the applicant to establish that the proposed action is “likely to have a significant impact” on one or more of the five listed threatened species: Save our Strathbogie Forest Inc v Secretary to Department of Energy, Environment and Climate Action [2024] FCA 317; 306 FCR 316 (Strathbogie (FCA)) at [344].  That question is essentially a question of fact: Strathbogie (FCA) at [97]; see also, Friends of Leadbeater’s Possum at [1292], [1342]ff; Booth v Bosworth [2001] FCA 1453; 114 FCR 39 at [70] (Branson J); Minister for Environment and Heritage v Greentree (No 2) [2004] FCA 741; 138 FCR 198 at [192] (Sackville J); Australian Brumby Alliance Inc v Parks Victoria Inc [2020] FCA 605; 277 FCR 559 at [16].  This requires the Court to make a single evaluative judgement in respect of each of the five listed threatened species, having considered the interrelationship between all of the facts, matters and circumstances: Strathbogie (FCA) at [348].

80 Furthermore, as the respondents submit, insofar as there is uncertainty on the evidence regarding the impacts of the Development, the applicant’s onus of proof is not removed or met by applying the precautionary principle: Strathbogie (FCA) at [349]; Save our Strathbogie Forest Inc v Secretary to Department of Energy, Environment and Climate Action [2024] FCAFC 134; 306 FCR 331 (Strathbogie (FCAFC)) at [65].  The precautionary principle is set out in s 391(2) of the EPBC Act and is that:

… lack of full scientific certainty should not be used as a reason for postponing a measure to prevent degradation of the environment where there are threats of serious or irreversible environmental damage.

81 Thus, as the applicant appeared to accept, the precautionary principle does not apply to the question about whether this Court ought to grant a final injunction.  Rather, it applies as a mandatory relevant consideration at the stage where the Minister decides whether to approve a proposal and, if so, on what conditions.

82 Secondly, with respect to the general approach to construing s 18 of the EPBC Act, Marshall J correctly held in Brown v Forestry Tasmania (No 4) [2006] FCA 1729; 157 FCR 1 at [300]-[301] that:

Promotion of the conservation of biodiversity, as s 3(1)(c) of the EPBC Act requires, in context, can only be achieved by favouring a construction of the EPBC Act which views protection of the environment as an act of not merely keeping threatened species alive, but actually restoring their populations so that they cease to be threatened. Section 3(2)(e)(i) says it all when it stresses the promotion of the recovery of threatened species.

The requirement in s 18(3) of the EPBC Act that an action not occur which is likely to have a significant impact on a listed threatened species must be seen in the context of an Act and Conventions which underlie the promotion of recovery of threatened species.

83 Thirdly, while the phrase “significant impact” is not defined in the EPBC Act, Horan J in Strathbogie (FCA) at [335]-[336] helpfully explained that:

… a significant impact is one that is “important, notable or of consequence having regard to its context or intensity”: Booth at [99]-[100] (Branson J); VicForests v Friends of Leadbeater’s Possum Inc (2021) 285 FCR 70 at [62] (Jagot, Griffiths and SC Derrington JJ) (Friends of Leadbeater’s Possum FC).  In a related context under s 139(2)(b) of the EPBC Act, the term “significant” has been taken to operate as a limitation to “exclude impacts which are minor or negligible on a listed threatened species”: Northern Inland Council for the Environment Inc v Minister for the Environment (2013) 218 FCR 491 at [92] (Cowdroy J). As Dowsett J observed in Krajniw v Brisbane City Council (No 2) [2011] FCA 563 at [10], the purpose of the EPBC Act “would not be achieved if any possibly adverse effect upon a species, however minor and however unlikely, was sufficient to engage either of ss 18 and 18A”.

Whether a proposed action is likely to have a significant impact under s 18 of the EPBC Act is a question of fact: Greentree at [192] (Sackville J); Australian Brumby Alliance at [230] (O’Bryan J).  Importantly, assessing whether an impact is significant “is not a mathematical exercise, but rather a matter of considering the evidence as a whole”: Friends of Leadbeater’s Possum at [1308] cited with approval by the Full Court in Friends of Leadbeater’s Possum FC at [267].

84 In line with this approach, Mortimer J (as her Honour then was) explained in Friends of Leadbeater’s Possum at [1292] that:

The question of significant impact must be approached in a sensible, and not overly technical way, because it is dealing with “real life” conduct with alleged “real life” effects on matters of national environmental significance. Part 3 of the EPBC Act is not concerned with the theoretical but with the actual. The text of Pt 3 should not be parsed in a way which renders the protection and regulation it seeks to effect so complex, and so technical, that it is not capable of sensible, practical application to the tremendous variety of circumstances in which conduct undertaken in the environment might be assessed for its effects on matters of national environmental significance. Otherwise, appropriate protection and conservation of matters of national environmental significance could not be achieved and the fundamental objectives of the EPBC Act would be frustrated.

(Emphasis added.)

85 As such, Mortimer J also observed, at [1453], that the statutory concept of “significant impact” “is a flexible and adaptable concept, designed to be applied in particular factual circumstances to advance the relevant objectives of the EPBC Act”.

86 Fourthly, with respect to the construction of the word “likely” in the phrase “likely to have a significant impact” in ss 18 and 18A, Horan J in Strathbogie (FCA) at [338] explained that:

The term “likely” is also not defined in the EPBC Act.  The weight of first-instance decisions in this Court supports a conclusion that “likely” in s 18(3) refers to “a real or not remote chance or possibility”, in the sense of “prone” or “with a propensity” or “liable”, as distinct from a test of “more probable than not”:   Polaris Coomera Pty Ltd v Minister for the Environment [2021] FCA 254 at [226] (Rangiah J); Friends of Leadbeater’s Possum at [1298]; Northern Inland Council at [91]-[92]; Booth at [97]-[98]; see also Environment Council of Central Queensland Inc v Minister for the Environment and Water (No 2) [2023] FCA 1208; 413 ALR 318 at [58]-[59] regarding s 78(1)(a) (McElwaine J).

87 In this regard, Horan J rejected the Secretary’s submission that the meaning of “is likely to have” in s 18(3) should be construed as meaning “more probable than not”.  Rather, at [343], his Honour:

… adopt[ed] a construction of s 18(3)(b) of the EPBC Act that is consistent with the conclusion reached by Rangiah J in Polaris at [226], namely that the phrase “is likely to have” refers to “a real or not remote chance or possibility”. Although this formulation is expressed in disjunctive terms, I do not consider that there is any material distinction in this context between a “real” chance or possibility and a “not remote” chance or possibility, nor that there is any material distinction between a “chance” and a “possibility”.  In other words, the phrase in s 18(3)(b) is directed to a real (in the sense of not remote) possibility of an impact of the relevant kind.

88 No issue was taken on appeal in Strathbogie (FCAFC) with the principles adopted by Horan J relating to “significant impact” and “likely”, and the Full Court’s reasons in Strathbogie (FCAFC) do not cast any doubt on the correctness of his Honour’s views: Strathbogie (FCAFC) at [62] and [65] (the Court).

89 Fifthly, it is important to emphasise that the question posed by s 18 is whether the proposed action will have a significant impact on a “species”.  This includes actions that have an adverse impact on the “recovery” of a species: Friends of Leadbeater’s Possum at [1411].  This is because the centrality of the objective of recovery must inform the content of significant impact in s 18, otherwise the objectives of the EPBC Act would be “frustrated and likely defeated”.

90 This does not, however, mean that likely adverse impacts on individual members of a species and local populations may not be relevant in the overall assessment of significant impact on a “species”.  Rather, as Mortimer J in Friends of Leadbeater’s Possum at [1304] explained:

the text of s 18 plainly refers to impacts on the “species” and that is the statutory question.  As a matter of fact in a given case, that will not preclude assessment of impacts on individuals of a threatened fauna (or flora) species; and indeed the whole context of the prohibitions – the taking of an action – is very likely to involve consideration of the effects of actions on flora or fauna species in identified and localised locations. That is because the taking of an action is also often likely to be location specific. The objectives of the EPBC Act, and Pt 3 in particular, could easily be frustrated with too literal an approach to this aspect of s 18. … The thrust of the significant impact provisions is to conserve and protect species in the wild, so that their “chances of long-term survival in nature” are maximised (see the use of that language in s 270(1), concerning Recovery Plans).  Survival “in nature” refers in my opinion to survival reflecting that species’ place in the natural ecosystem – survival of a species at sufficient and sustainable levels of abundance, with sufficient and sustainable genetic diversity and across the species’ natural range.

91 Thus, in a passage on which the applicant here placed particular emphasis, Mortimer J held at [1308] that:

The evidence about detections of individuals, and about the effects of forestry operations on individual members of both species which are occupying or using the native forest where the forestry operations were conducted, does not detract from that point.  All this evidence is capable of being probative of impact on the species as a whole. Assessing such an impact is not a mathematical exercise, but rather a matter of considering the evidence as a whole.

92 Similarly, Horan J in Strathbogie (FCA) at [337] (in a passage with which no issue was taken on appeal in Strathbogie (FCAFC) and which was evidently accepted by the Full Court) explained that:

The text of s 18(3) refers to a significant impact on a “listed threatened species”. It has been accepted that this requires demonstration of a significant adverse impact on the relevant species as a whole: Krajniw at [10]. However, this does not necessarily preclude assessment of impacts on individuals of a listed threatened species of fauna, or on localised populations of that species:  see Friends of Leadbeater’s Possum at [1304]; Friends of Leadbeater’s Possum FC at [267].  Although the term is not itself used in s 18, a “population” of a species is defined in s 528 of the EPBC Act to mean an occurrence of the species or community in a particular area. While the statutory question remains one of impact on the species, evidence of impacts or effects on individuals or local populations “is capable of being probative of impact on the species as a whole”:  Friends of Leadbeater’s Possum at [1308].  This can encompass consideration of the long-term survival of the species “at sufficient and sustainable levels of abundance, with sufficient and sustainable genetic diversity and across the species’ natural range”: Friends of Leadbeater’s Possum at [1304].

(Emphasis added.)

93 Thus, in considering whether and to what extent planned burns were likely to result in the death or injury of Southern Greater Gliders from the direct effect of the fires (being the issue there in question), Horan J held at [348]:

On the construction of s 18(3) that I have adopted above, the proceeding is directed to whether there is a real (in the sense of non-remote) chance or possibility that the planned burns will have a significant impact (ie an impact that is important, notable or of consequence) on the Southern Greater Glider as a species. I consider that this should ultimately be regarded as one question involving a single evaluative judgment: compare Australian Competition and Consumer Commission v Pacific National Pty Limited (No 2) [2019] FCA 669 at [1276]-[1279] (Beach J); Australian Competition and Consumer Commission v Pacific National Pty Limited (2020) 277 FCR 49 at [161], [245]-[246] (Middleton and O’Bryan JJ); see also Australian Competition and Consumer Commission v Metcash Trading Ltd (2011) 198 FCR 297 at [227]-[228] (Yates J); Vodafone Hutchison Australia Pty Limited v Australian Competition and Consumer Commission [2020] FCA 117 at [65] (Middleton J).  While that question might entail or turn on a number of different factual issues, the assessment of whether there is a real (in the sense of not remote) possibility of a significant impact on the Southern Greater Glider should not be diluted by separately addressing whether there is some possibility of each of the multiple factual elements which might together give rise to such an impact. Rather, it is necessary to consider the interrelationship of all of the facts, matters and circumstances and to ask whether there is a real (in the sense of not remote) possibility of a significant impact on the Southern Greater Glider.

(Emphasis added.)

94 After setting out the relevant factual issues, Horan J applied these principles in Strathbogie (FCA) at [384] to hold that:

Each of the above issues requires findings of fact to be made on the balance of probabilities, although such findings can potentially relate to the existence of a likelihood in the sense of a real or non-remote chance.  However, as explained above, the ultimate single question is whether or not it is likely (that is, whether there is real and non-remote possibility) that the conduct of the planned burns will have a significant impact on the Southern Greater Glider as a species within the meaning of s 18(3) of the EPBC Act.  A compounding series of non-remote possibilities of various events or consequences might not give rise to a real chance of a significant impact based on the combination of all of those events or consequences – in other words, the possibility that all of those events or consequences will occur together may be too remote.   Conversely, the fact that the possibility of one or more events or consequences is less than 50% does not preclude a finding that there is a real and non-remote possibility of a significant impact based on the possible occurrence of all of those events or consequences.

95 The respondents correctly identified two major difficulties with the approach adopted by the applicant which, with respect, distorted the statutory test.

(1)    One of the overall criticisms of the applicant’s case by the respondents was that it did not recognise, and failed to follow through, the question of the significant impact on the species as a whole for many of the species in question.  In the respondents’ submission, the applicant wrongly seeks to convert the proposition that evidence of impacts or effects on individuals or local populations is capable of being probative of the impact on the species as a whole “into a proposition that individual members of a population or effects on something less than the whole species is itself an indicator of the answer to the statutory question.  It might be probative in the sense that it might be a relevant matter going to towards that eventual question, but … the fact that the relevant significant adverse impact has to be on the species as a whole is the statutory question, and evidence needs to be assessed in that light” (emphasis added).

(2)    As the respondents also contended, there were numerous instances in the applicant’s written submissions and in their cross-examination of experts where the applicant tried to build separate factual integers or elements to “the level of a real chance or possibility, which are compounded, added together and asserted by the applicant to … support an overall outcome that there’s a real chance of significant impact”.  That approach is plainly in error.  Senior counsel for the respondents helpfully illustrated that point in relation to the MRS in the following passage in closing:

MR LANCASTER:  The incorrect approach is to say there are particular areas which, although the evidence does not show to be existing habitat for the snail, in that there’s – the snail has never been identified anywhere on the site, but there are areas of habitat that provide a potential environment for the Mitchell’s rainforest snail. So the applicant’s proposition is there’s a real chance or possibility that, if left alone, this site will remain potential habitat, and then there’s a second factual integer, which is there’s a suggestion that the Mitchell’s rainforest snail might be somewhere else in the locality, although not on the property, and that there’s a real chance that that might in the future use suitable habitat on the site, and that is an example of, in my submission, an impermissible double building block of a real chance test to try and assert that there’s a real chance of a significant impact on the Mitchell’s rainforest snail.

HER HONOUR: So would you say then – you wouldn’t discount those areas as potentially being relevant, the evidence of those facts potentially being relevant or – but what you would say is that you don’t individually assess each integer?

MR LANCASTER: By reference to a real chance.

HER HONOUR: By reference to a real chance. What you look at is you look – take into account the fact there is evidence of potential environment, there is evidence that the Mitchell’s rainforest snail might be in the locality, there is other evidence on top of that and you look at all of that as a totality - - -

MR LANCASTER: And then you look at impacts and questions of impact.

HER HONOUR: Yes.

MR LANCASTER: And that would be the third building block because it might – and again, and this is a somewhat speculative use of the example, but it is said there is a real chance or possibility that what is being done on the property might interfere with that habitat in a way that interferes with the species, and that would be the third real chance building block, and that would be an impermissible approach.

What the impermissible approach does, your Honour, is it distorts the statutory question as to Horan J in the Full Court recognised. Because what is required is that single, evaluative judgment. And it’s important that the facts that go into that judgment faithfully reflect the element – each of these factual elements. And so for the snail the fact is there is a complete absence of evidence about the existence of the snail on the – on the site. It has not been shown to be present on the site….

[While there is some evidence of presence on the site in terms of the management zones,] in terms of the area that is liable to be affected by the development there is a complete absence of evidence. … the significance of that fact is very much undermined … if this impermissible approach of separately addressing each factual integer at the level of real chance is undertaken. Because it evidently stands to reason that it is very significant in terms of the overall assessment of a likelihood of significant impact on a species if the species has not been shown to be there. So it would distort the fact-finding process to do it any other way.

96 It follows, as I explain more fully later in these reasons, that the applicant erred insofar as it approached cross-examination and submissions by proceeding as if it sufficed to establish that there is a real and not remote chance that various factual integers underpinning its “significant impact” claim existed.  However, as the respondents explained in their closing submissions:

the Applicant’s frequent approach in cross-examination and written submission of suggesting that the question is whether there is a real, as in not remote, chance of various factual integers of its overall claim regarding “significant impact” is inappropriate. The approach is inconsistent with the proper interpretation of the statute and with the authorities identified above. The construction of the word “likely” in the context of ss 18 and 18A as meaning “a real and not remote chance or possibility” does not mean that it is sufficient for it to establish those factual integers only at the level of real possibilities.  Significant impact is not made out, for example, by establishing a ‘real and not remote’ prospect that an area of the Land provides potential habitat for some individual members of one of the species in question, or that there is a ‘real and not remote’ prospect that an area may regenerate over a considerable period of time and then may provide habitat for some individual members of such a species.

97 In other words, as put pithily by the respondents, the multiplication of mere possibilities cannot amount to a “real chance” of a significant impact.

98 Sixthly, as the applicant contends, the category in which the threatened species is listed under the EPBC Act is relevant to determining whether the action is likely to have a significant impact on the species.  For example, in Friends of Leadbeater’s Possum at [1343], Mortimer J held that “for the Leadbeater’s Possum, as the landscape scale of the action increases (from individual, through to geographical coupe group and through to all Logged Coupes or Scheduled Coupes), the impact on individual members of the Leadbeater’s Possum species increases, and for a species which is critically endangered, as I have found, impact on individual members of that species can be (and in this case is) a significant impact”: see also at [1424].

99 Finally, an issue arose between the parties as to the applicability of s 140 of the Evidence Act 1995 (Cth), which reflects the common law principle stated in Briginshaw v Briginshaw (1938) 60 CLR 336. In deciding whether it is satisfied that the applicant proved its case, the Court is to take into account the nature of the cause of action, the nature of the subject-matter of the proceedings, and the gravity of the matters alleged: s 140(2) of the Evidence Act.  The respondents submit that an allegation that a proposed action would be prohibited by s 18 of the EPBC Act is serious because, in addition to injunctive relief, conduct in contravention of s 18 attracts a civil penalty and can constitute a criminal offence under s 18A of the EPBC Act.  The respondents referred to the following passage in Strathbogie (FCA) at [344]-[346] (as quoted in Strathbogie (FCAFC) at [63]):

Nevertheless, the applicant bears the onus of establishing on the balance of probabilities that the proposed action will have or is likely to have a significant impact on the Southern Greater Glider as a species. In other words, the applicant must establish on the evidence as a whole that there is a real (in the sense of not remote) possibility that the planned burns will have an impact on the species that is important, notable or of consequence having regard to its context or intensity.

For such purposes, in deciding whether or not the applicant has proved its case on the balance of probabilities, s 140 of the Evidence Act requires the Court to take into account the nature of the cause of action, the nature of the subject matter of the proceeding, and the gravity of the matters alleged: see generally Booth at [69] ff. Section 140 reflects the common law as explained by Dixon J in Briginshaw v Briginshaw (1938) 60 CLR 336: see e.g. Employment Advocate v Williamson (2001) 111 FCR 20 at [65]-[67] (Branson J); Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing & Allied Services Union of Australia v Australian Competition and Consumer Commission (2007) 162 FCR 466 at [31]-[32] (Weinberg, Bennett and Rares JJ). Accordingly, “the strength of the evidence necessary to establish a fact or facts on the balance of probabilities in a case of this kind [that is, involving an alleged contravention of a statutory prohibition] might, depending on the nature of the particular fact or facts, be greater than would be required to establish a fact in issue on the balance of probabilities in a proceeding of a different kind”: Booth at [70].

In the present case, the applicant seeks injunctive relief pursuant to s 475(2) of the EPBC Act to restrain the Secretary from carrying out the planned burns, alleging that the planned burns would constitute an action that is prohibited by s 18(3) of the EPBC Act. Such an allegation is serious – in addition to injunctive relief, conduct in contravention of s 18(3) attracts a civil penalty and can constitute a criminal offence under s 18A of the EPBC Act. On the other hand, the proceeding seeks to restrain future conduct and does not allege that the Secretary has engaged in any past conduct in contravention of the EPBC Act. The granting of an injunction may nevertheless have significant consequences for the Secretary, and its ability to carry out planned burns as part of its fuel reduction program in the Hume region.  If the matter were required to be referred to the Commonwealth Minister for assessment and approval, there is likely to be consequential impacts on the timing of the planned burns, although the applicant submitted that such processes are capable of being accommodated in the Secretary’s planning processes and suggested that it was likely that the Commonwealth Minister would ultimately grant approval on appropriate conditions.

(Emphasis added.)

100 However, the Full Court in Strathbogie (FCAFC) held that, where an injunction was sought to restrain future conduct and the party proposing to engage in the conduct considered the conduct did not require approval, it was “open to question whether the aspect of s 140(2) of the Evidence Act concerned with the ‘gravity of the matters alleged’ had much of a role to play” (at [121]). The Full Court further stated at [122] that “[i]n these circumstances, the “conventional perception that members of our society do not ordinarily engage in fraudulent or criminal conduct” did not assist in the process of fact-finding”.  The Full Court considered that the primary judge in Strathbogie (FCA) “appreciated this point”, given the emphasised statement in the passage at paragraph 99 above, and held that the primary judge did not err and did not apply the Briginshaw principle where it was inapposite (at [122]-[125]).

101 Accordingly, s 140(2) of the Evidence Act does not assist in determining whether the Development or slashing works are likely to have a significant impact on the relevant listed threatened species.  It may, however, apply in relation to the applicant’s allegation that the respondents cannot avail themselves of the s 43B of the EPBC Act defence because the respondents’ past slashing activities were unlawful.

5.    THE DEVELOPMENT

5.1    The Land and the Development Footprint

102 As earlier explained, the Land (also referred to as the Site) is located in Brunswick Heads, NSW and is depicted by the red boundaries in the Locality Plan contained in the plans prepared by CivilTech Consulting Engineers and approved by the Council:

103 The large green area to the east of the Land is part of the Tyagarah Nature Reserve. The Tyagarah Nature Reserve is approximately equal to 875 ha.

104 The layout of the Development includes areas for residential subdivision, road reserves, public open space, and a drainage reserve.  Those areas of the Development are referred to in these reasons as the Development Footprint. The Development Footprint has been reduced from 17.3 ha at the time of the concept plan being approved, to 12.1 ha.

105 Aerial imagery from 1965 shows that the Development Footprint had already been cleared by that time for agricultural purposes and is not in its natural, undisturbed condition (as the parties’ expert witnesses on groundwater, hydrology and water quality agreed).  Reproduced below is an aerial image.  It bears noting that the diagonal strip that runs between the two boundaries is a Crown road reserve, and thus does not belong to the respondents.

106 The Land in its current state was described in the BDAR prepared by AWC for the proposed Development on behalf of the second respondent.  The BDAR was required due to the proposed subdivision impacting land mapped as being of Biodiversity Value as per the Biodiversity Values Map and Threshold Tool.

107 The BDAR highlights the proximity of the Land to the pre-existing Bayside residential subdivision and the highly disturbed state of that part of the Land, which is proposed to be subdivided, being land which is zoned residential:

The site comprises Wallum Estate, Lot 13 DP1251383 Torakina Road, which 30.26 ha in area … Wallum Estate is the final undeveloped portion of the Bayside subdivision which commenced in the late 1980’s.  A road reserve of 20m width bisects the eastern portion of the site.  Simpson’s Creek (a 4th order stream) flanks the eastern perimeter of the site.

The site is well-vegetated in the eastern portion flanking Simpsons Creek, although numerous historic tracks and trails have been created by unauthorised 4WDs  and trail bikes, fishermen and local residents. Informal camping areas occur at several locations. The central portion of the site comprises wet heathland which is regularly slashed and has been maintained in this state for the last 20 years or more. The northern portion of the site has been subject to historic earthworks, vegetation clearing, and drainage works. The western portion of the site is disturbed by a power line easement and access track and from encroachment by adjacent residences. The central and eastern portion of the site (west of the road reserve) is regularly slashed, as are access tracks and the powerline easement in the west.

A constructed drain runs north to south through the centre of the site and receives stormwater from the urban subdivision to the north. Currently, urban stormwater passes untreated through the side and into a cross drain (‘Everitts Creek’) on adjacent land to the south which then discharges east to Simpsons Creek.

The entire site is zoned DM (Deferred Matter) under the Byron Local Environmental Plan (LEP) 2014 and a minimum lot size is not allocated.  Under the Byron LEP 1988 the majority of the site is zoned 2(a) Residential, with the area east of the road reserve zoned 7(a) (Wetlands) and 7(b) Coastal Habitat … The proposed subdivision is entirely within 2(a) zoned land.

The eastern fringe of the site flanking Simpsons Creek is mapped as Coastal Wetlands as per State Environmental Planning Policy (Coastal Management) 2018… As the eastern portion of the site is separated from the main portion of the site by 20m road reserve and is zoned for environmental protection, it is not considered further in this assessment.

108 Similarly, the Vegetation MP describes the Land in the following terms:

The subject site (Lot 13 DP1251383) is located immediately south of the township of Brunswick Heads and has an area of approximately 30.5ha.  The majority of the site is dominated by slashed low heath.  The site is bound by residential development to the north with areas of undisturbed forest to the west and south of the site.  The eastern boundary is bound by Simpsons Creek.  The property is bisected north-south by a constructed drainage line (‘the central drain’) which flows into Everitts Creek to the south which in turn connects to Simpsons Creek.

A 20 metre wide road reserve runs through the eastern portion of the stie [sic] and continues into adjacent land to the south (Lot 4 DP576360).  Coastal Wetlands gazetted under State Environmental Planning Policy (Resilience and Hazards) 2021 occur in the east of the site flanking Simpsons Creek.

109 The composition of the Land includes wet heathland or wallum swamps, and sand plains and dunes (as the applicant’s expert, A/Prof Wardell-Johnson explained, as well as substantial forested areas in the management zones (including the whole of the area to the east of the Crown road reserve) which are to be conserved and rehabilitated.

5.2    Overview of the Development

110 As earlier stated, the Development is defined by reference to the Consent granted on 16 May 2023 under Pt 4 of the EP&A Act (NSW), which provides for a residential subdivision in seven stages, comprising:  123 residential lots, three medium-density lots, and one public reserve together with associated public roads and infrastructure services (water, sewerage, drainage and stormwater management works, bulk earthworks, tree removal and vegetation management works).  Residual land outside the Development Footprint is to be managed for biodiversity, including one management area dedicated to the Council.  Specifically, the Development includes several conservation areas outside the development footprint which are described as “management zones” and cover 18.7ha of the Land or approximately 61% of the total area of the Land.  One management area (being MZ-3) will be dedicated to the Council on completion of the required works, while MZ-1, MZ-2 and MZ-4, which will remain in private ownership, will be required to be managed and maintained in accordance with the Vegetation MP in perpetuity.  The portion of the site east of the road reserve flanking Simpsons Creek (10.24 ha) will also be dedicated to the Council.

111 The aerial overlay of the site – which forms part of the plans approved by the Council in accordance with condition 1 of the Consent (the approved plans) – is reproduced below and clearly depicts the extent to which the area to be subdivided has been cleared of vegetation:

112 The Subdivision Layout Plan, which also forms part of the approved plans, is reproduced below:

113 While the Development is proposed to consist of 123 residential lots, three medium density lots, one public reserve and associated infrastructure, at this stage the Development does not include any approved residential construction.  This is because residential construction is subject to a separate consideration and approval process under the EP&A Act (NSW) following completion of the subdivision.

114 As earlier explained, the Development Footprint occupies 12.1 ha of the Land, having been reduced from 17.3 ha at the time of the concept plan approval in 2013.  While the applicant referred to an area of 13.5 ha in closing submissions, that figure was drawn from the BDAR and not the approved plans.  Further, as pointed out by AWC in the BDAR, the approved plans will result in substantially less destruction of vegetation and habitat than the previous layout proposed in the concept plan which would have removed 13.61 ha of native vegetation.

115 The approved plans also provide for construction of a reserve to enclose a new drain parallel to the existing waterway. The entire central drainage reserve as well as the open space and community gardens to the north of the reserve are to be excavated below the current ground level, as indicated by the negative red numerals on the Earthworks Cut Fill Plan.  Thus, the applicant submits that while these areas are not built up (and the drainage reserve is described as MZ-3A) they will be denuded of vegetation during construction and for that reason form part of the Development Footprint. However, as the respondent also submits, no works are proposed for the existing north-south drain, which will be managed as part of MZ-3B.

116 At the outer edge of the perimeter of the proposed road network are in-filled trenches to be planted with turf or native vegetation.  These swales (also known as bioretention basins or “on-site detention basins” (OSD basins)) are intended to soak up runoff from the built-up area of the Development.

5.3    Ownership of the swales after completion of the Development

117 The applicant submits that there is confusion as to the ownership of the swales after completion of the Development based on the landscape plans prepared by AWC, which form part of the approved plans, pursuant to condition 1 of the Consent.  However, on the question of ownership of the swales after completion of the Development, I would accept the engineering plans prepared by CivilTech Consulting Engineers over the landscape plans as accurately depicting the road construction and road reserve.  As the respondents submit, those engineering plans demonstrate that the swales lie within the road reserve, save for one swale which lies partly within the reserve and abuts the Council drainage reserve (MZ-3A) for the second north-south drain, as reproduced below.

118 It follows that the whole of the swale (as depicted in green below) will be owned by the Council:

5.4    Key conditions in the Consent

119 The Consent granted by the Council on 16 May 2023 sets out a carefully structured, staged pathway requiring compliance with conditions at each stage before the Development can proceed to the next stage.  These conditions are relevantly directed at addressing and monitoring environmental impacts and improving environmental outcomes, including with respect to vulnerable species and water management.

120 First, the Consent was subject to conditions 6 to 9 which required amended vegetation, wallum froglet, works in the management zone (construction environmental), and surface water and groundwater, management plans to be submitted to the Council before Subdivision Works Certificate – early Stage 1 was issued.  As is apparent, these plans are concerned with the management and protection of the environment and particular species.

121 On 8 February 2024, the Council resolved to approve the documents submitted to it in satisfaction of these conditions.  Among the documents approved by the Council prior to issuing the Subdivision Works Certificate issued on 1 March 2024 were the following plans.

(1)    The Revised Wallum Froglet Management Plan by AWC dated 15 February 2024 (Wallum Froglet MP (also described in some documents as the WFMP)), the objects of which are to retain and enhance the Wallum Froglet/WSF habitat and provide suitable water quality and hydroperiod condition for acid frogs.

(2)    The Revised Vegetation Management Plan by AWC dated 26 February 2024 (Vegetation MP (also described as the VMP)), the aim of which is “to retain consolidated vegetation communities, re-establish degraded areas of vegetation outside of the development footprint within designated Management Zones and thereby improve threatened species habitat.”

(3)    The Surface Water and Groundwater Management Plan by AWC dated 24 October 2023 (Surface Water and Groundwater MP (also described as the SWGMP)) which is intended to provide a framework to monitor and detect adverse impacts to the groundwater and surface water reserves of the Land and to provide management strategies to protect the downstream aquatic habitat.

(4)    The Early Works Stage 1, Construction Environmental Management Plan by AWC dated 30 November 2023 (Construction Environmental MP (also described as the CEMP)) which is a comprehensive overarching document that applies to the whole site, from site preparation and early works through to completion of construction.  Among other things, the Construction Environmental MP outlines measures to manage impacts to the natural environment and mitigate impacts to water quality, vegetation and fauna.

122 I consider these and other relevant plans governing the Development later in these reasons.

123 Secondly, as mentioned above, the Consent continues to be conditioned on compliance with multiple approved plans (including those described above), and on the preparation of additional or updated plans which must be submitted to, and approved by, the Council before the issue of a Subdivision Works Certificate or a construction certificate for each stage of the Development.  The respondents give the following helpful example:

For example, each application for a subdivision work certificate is to include an updated Construction Environmental Management Plan (CEMP) for each stage (condition 46…).  The CEMP is to document all environmental commitments for each stage of the development [including mitigation, management, restoration, monitoring, and reporting detailed in the approved Vegetation MP, Surface and Groundwater MP, and Wallum Froglet MP] and is to be developed so that the CEMP can take into account any new information gathered from ongoing monitoring and modelling and is to be adapted as necessary to accommodate any necessary design changes and measures to address contingencies that may arise (condition 8…).  The application for a subdivision certificate for each stage must be accompanied by a Completion Report addressing Environmental Reporting and Compliance, which must demonstrate full compliance with the approved suite of environmental management plans – namely, the CEMP, VMP, WFMP, ASSMP [(Acid Sulfate Soil Management Plan)], SWGMP and UFP [(Unexpected Finds Protocol)] - and is in each case to be peer reviewed by an independent environmental expert and this independent report is also to be submitted to Council (conditions 8 and 103…).  Any non-compliance is required to be addressed before commencement of the following stage (condition 8 …) and could be relied on by Council in considering whether to approve the subdivision works certificate for the following stage.

(Emphasis added.)

124 In addition to the peer-reviewed Environmental Reporting and Compliance Completion Report for each Stage, a report must be submitted to the Council before the issue of a Subdivision Works Certificate for each stage from a qualified and experience ecologist and/or Bush Regenerator.  That report must demonstrate that all works required by the approved Vegetation MP have been completed and all performance criteria have been met, and must then be approved by Council:  Consent, condition 101.  Condition 102 of the Consent also requires that a Monitoring Report be submitted and approved by Council in conjunction with the application for a subdivision certificate for each stage which demonstrates that all works required by the Wallum Froglet MP have been completed and that all performance criteria have been met.  (I note that there are some words missing from the text of condition 102 in the Consent, but this is plainly what was intended.)

125 Thirdly, condition 97 of the Consent requires the lodgement of a maintenance bond of 5% of the value of the works completed for each stage with the Council.  As the respondents submit, the maintenance period during which the Council is to hold the bond is two years after construction for each stage is completed, or if any defect repairs are required, an additional two years from the completion of those repairs.  During this period, the developer is required to maintain all subdivision works and repair any defects.  Moreover, during the maintenance period, periodic inspections must be carried out by a suitably qualified engineer every three months or after any major or minor storm event.  An annual report must also be submitted to the Council and include inspection records that identify all defects and rectification works for the periodic inspections, including:

* Sediment removal

* Weed removal

* Maintenance of batters and outlet points (no concentrated flow path from pipe outlets & groundwater)

* Maintenance of downstream outlets

* Replanting as required to replace failed plants

* Plants Establishment to include plant health and survivorship greater than 90%, plant density (Lomandra and sedges at minimum 8 – 10 plants per m2), weed density (0% preferable), sediment build up, and record of plant growth & maturity by way of photo log)

126 Ongoing monitoring and reporting by appropriate experts measured by reference to performance criteria, together with obligations to remedy any non-compliance before moving to the next stage and make appropriate modifications, are therefore fundamental to the Consent. Accordingly, the regime is fashioned so as to accommodate multiple variables which may interact with, and feed into, environmental impacts from actions on land, as a result of which nothing can be predicted and addressed with absolute certainty upfront.  This highlights, with respect, one of the fundamental difficulties with the applicant’s case.  Often the applicant’s approach to cross-examination and its submissions ignored the flexibility and adaptability built into the scheme – which is intended to respond to the complexity of these variables and their interactions in the “real world” environment of the Land.  Instead, the applicant proceeded on the assumption that the actions authorised by the Consent were immutable and that the environmental impacts should be able to be assessed with certainty at a given point in time.  Yet the monitoring, flexibility and adaptability of the regime established by the Consent and associated documents must itself be taken into account in determining whether the Development is likely in the statutory sense to have a significant impact on any of the listed threatened species.  If, for example, monitoring of pH levels identifies a change in pH levels (a matter that would potentially impact on the suitability of the environment for the WSF), that would be picked up, reported on, and steps taken to identify and remedy the problem, absent which the Development could not proceed to the next stage.

5.5    The management zones

127 There are several management zones, namely, the land fronting Simpsons Creek (MZ-1), the eastern zone (MZ-2, which is divided into MZ-2a and MZ-2b), the central zone (MZ-3, which is divided into MZ-3A and MZ-3B) and the western zone (MZ-4). MZ-3 will be dedicated to the Council once works have been satisfactorily completed:  Vegetation MP at 6.1.

128 The locations of the management zones are depicted on the following plan from the Vegetation MP:

129 These zones are presently accessed by local residents via degraded sandy tracks which will be “ripped to promote regeneration” in order to reduce access by people and invasive species.  Some of the tracks are evident in the aerial photograph of the subject land in the Vegetation MP reproduced below.  The aerial photograph reproduced at paragraph 105 above also more clearly shows the extent of vegetation around the Development and the location of the relevant features.

130 The applicant took issue with various aspects of the design of the Development and management zones, which, in its submission, affect the impact of the Development on the relevant listed threatened species.  Some of these issues are considered in the context of considering the individual species.  However, there are a number which are conveniently dealt with at the outset, namely:  the applicant’s “strips of land” contention with respect to the management zones; the applicant’s submissions in relation to buffers and fencing; the effectiveness of covenants prohibiting domestic dogs and cats; the long term effectiveness of the Consent and Planning Agreement; and the applicant’s contention that the respondents ignored requests for a referral to the Commonwealth Minister under the EPBC Act.

5.6    The applicant’s “strips of land” contention

131 The applicant accepts that the intended function of the management zones is to serve as wildlife refuges for the various listed threatened species detected on the Land as well as for other species which may be present.  However, it submits that “[i]ntuitively, it might be considered ambitious to expect a range of threatened species – vulnerable, endangered, and critically endangered - will co-exist and thrive in the wild”, when confined to 7.5 ha of land (excluding MZ-1) given that the Land:

(1)     is further divided into three thin strips; and

(2)    is directly adjacent to an urban development likely to house between 400 to 500 residents

132 By comparison, the applicant points to the Caloundra South urban development which set aside 230ha for frog protection alone.

133 It is not ultimately clear what the applicant seeks to make by this submission.  No expert evidence is cited in support of the alleged inadequacy of the management zones by reason of their scale and location.  The submission rises no higher than intuition as to what may or may not be able to be achieved.  Nor, as the respondents submit, is the description of the Management Zones as “confin[ing]” a range of threatened species to “three thin strips” comprising 7.5 ha accurate.  Rather, as the respondents contend:

Management Zone 1 is approximately 10.3 hectares … and is separated from MZ-2 only by the ‘paper’ Crown road (in relation to which there is no evidence of any plans or proposal of the Council, the State of NSW, or anyone else to construct an actual road).  The areas in MZ-1 and the land to the south of the other three Management Zones adjoin Tyagarah Nature Reserve, which dwarfs the Land in scale.  The comparison to the 230 hectares within the Caloundra South urban development … in terms of areas set aside for frog protection is an unfair comparison and entirely inapposite the Caloundra South Priority Development Area is 2,323 hectares and involves the creation of approximately 20,000 dwellings.

5.7    Buffers and fencing

134 Buffers, as the applicant submits, are areas of native vegetation which are intended to insulate species habitat from potentially deleterious impacts commonly described as edge effects, such as trampling of habitat, dumping of rubbish and garden waste, access to habitat by domestic animals, humans, and pests (e.g., rats and domestic cats and dogs), and stormwater run-off. While the issue of buffers and fences is discussed in the context of particular impacts on relevant listed threatened species, there are a number of general observations which may be made at this stage.

135 In relation to physical separation of the management zones from the Development Footprint, the applicant submits as follows:

(1)    There are no buffers between the management zones and the Development Footprint;

(2)    There is no provision for permanent fencing between the management zones and the Development Footprint despite the presence of sensitive threatened species habitat located in the management zones directly abutting a substantial housing estate.  The only barriers stipulated in the plans are bunting (i.e. construction fencing) with warning notices.

(3)    Nor is there any other effective barrier to access.  The planting of saw-sedge (Ghania clarkei) along the management zones would not prevent humans and animals from entering the management zones.

(4)    In relation to the footpaths designated as public open space which run through MZ-2 between the Development Footprint and Simpsons Creek in the east, provision for a low post and wired fences on either side of the footpaths would be unlikely to deter adventurous children, or dogs, cats, rats or cane toads.

136 As to (3) and (4) above, the applicant submitted that:

At trial, a suggestion was floated that planting of saw-sedge (Ghania clarkei) might impede access to the Management Zones...  However, there is easy access to the Management Zones from the northern limbs of the Western and Eastern perimeter roads, where the only vegetation separating the Management Zones from the roads is mown turf...  Cane toads and other animals seeking water and prey will easily penetrate the entire Management Zone area from these points of access.  And with a large population of children living adjacent to the zones and doing what children do, it is inevitable that over time many will use these entry ways to access the “wild” area.

But in any event the presence of saw-sedge is most unlikely to deter ingress in the context of the proposed plantings.  The Plant Schedule set out in the Landscape Plans … prescribes that 10% of the plants to be planted in the Wallum Froglet Habitat Planting Zone are to be saw-sedge and 11% in the Bioretention Swale planting zone.  Humans and animals alike would have little difficulty dodging the occasional saw- sedge plant along the more southerly boundaries of the Management Zones; the most that could be hoped for would be to impede or hinder access….

…

As for the footpaths in the southern part of the development, the proposed Wallum Sand heath planting does not include saw-sedges at all (these are prescribed only for the vicinity of the central drain).  A low post and wire fence and dense plantings on either side of the footpaths are designed to discourage people from deviating from the path to the creek ….  But these are unlikely to deter adventurous children, or dogs, cats, rats or cane toads.

137 I do not accept the applicant’s submissions.

138 First, the question of whether particular buffers are adequate is not a question to be considered in the abstract but requires consideration of the adequacy of the particular buffer to achieve a specific purpose or purposes. Thus, for example, the Conservation Advice prepared by the Threatened Species Scientific Committee for the MRS refers to buffers in relation to the maintenance of natural hydrological flows around lowland rainforest and swamp areas where possible and, within MRS habitat, buffers of native vegetation and leaf litter around all occurrences of the species.  Meanwhile, the Conservation Advice for the LN Potoroo refers to buffers in relation to bushfire, and the Conservation Advice for the SEGB Cockatoo refers to the need for buffers in relation to “important nesting areas”.

139 Secondly, with respect to (2) above, the applicant contends that Mr James Warren, who gave expert evidence for the respondent in relation to the WSF, considered that absent fencing, there would be a risk of deleterious effects for the WSF from human ingress such as collecting tadpoles and trampling reed beds.  However, this takes Mr Warren’s evidence out of context in circumstances where he considered any deleterious effects would be buffered in this case by retained vegetation, fencing and signage.

140 Thirdly, as the respondent submits, existing vegetation within the management zones already impedes entry by humans. Furthermore, while the existing network of degraded, compacted sandy tracks through the management zones currently facilitates entry, as I have earlier mentioned, these tracks will be “ripped” so as to allow them to revegetate, and a single walking track for access to Simpsons Creek will be created instead.

141 Fourthly, the walking track to Simpsons Creek through MZ-2 incorporates a post and wire fence 1m in height to stop people heading off the track.  Moreover, there will be a dense, low storey planting of 5m in width on either side of the fence to further discourage users from leaving the designated track – a feature overlooked by the applicant’s submissions at (4) above.  The applicant’s suggestion that cane toads and adventurous children would enter the eastern management zones assumes, without any evidence (as the respondents submit) that they would inevitably seek to penetrate heavily vegetated areas within those zones rather than using the footpath.

142 Fifthly, with respect to MZ-2 and MZ-3, A/Prof Wardell-Johnson was taken to the approved Landscape Plans.  These depict the eastern perimeter road (Road 2) which encircles Stages 1 and 2 of the Development subdivision and abuts MZ-2 to the west, MZ-3 to the east, the existing urban development to the north, and forested private land to the south.  Importantly, the Landscape Plans depict planted areas described as “swale batter planting – not mown” on either side of bioretention swales separating the road from the two management zones as shown below:

143 The landscape plans further provide that:

(1)    the bioretention planting will be 2.4m wide with a total bioretention swale treatment and detention planting of about 4m; and

(2)    vehicle restriction boulders will be placed 0.5m from the kerb every 5m along the east and western sides of Road in order to prevent cars from parking.

144 A/Prof Wardell-Johnson agreed that the bioretention plantings would form a natural vegetated barrier to entry to MZ-2 which would “limit or reduce or lessen the likelihood” of entry by people (even though he did not accept they would prevent ingress) and that the boulders were intended to stop cars as well.  Logically, the same conclusion must follow with respect to the vegetated barrier to human entry to MZ-3.  Furthermore, precluding cars from parking by placing vehicle restriction boulders will operate as a potential deterrent to human entry into these areas as well, rendering it less convenient to access those areas.

145 As the respondents submit, it follows that human access to MZ-2 and MZ-3 is likely to be significantly discouraged and substantially reduced in area and extent.  Nor, as the respondents also submit, is there any reason to consider that the proposed buffers will be deficient.  The speculative possibility that a person may scale a fence or penetrate the vegetation of a managed conservation zone does not detract from the significant improvements in environmental conditions proposed for the areas within the management zones. Nor does it mean that those zones are not fit for the conservation and recovery purposes which they are intended to serve.  Absent a measure such as a high concrete wall – which may itself have significant adverse environmental impacts, such as blocking species corridors and generating alkalinity in the soil – it is difficult to know of a solution that would completely prevent entry into the management zones by adventurous children, cane toads and the like.  It is therefore not surprising that no alternative solution was proposed by the applicant.

5.8    Keeping of cats and dogs by residents

5.8.1    The condition and its effect in law

146 The Consent requires that the residential lots within the proposed Development be subject to a restriction on the use of land under s 88B of the Conveyancing Act 1919 (NSW) preventing residents from keeping cats and dogs – with the exception of assistance animals.  Specifically, condition 84 of the Consent reads:

A Section 88B Instrument and one (1) copy are to be submitted with the application for a subdivision certificate.  The final plan of subdivision and accompanying Section 88B Instrument are to provide for:

…

(d)    Keeping of Dogs and Cats

The creation of a restriction as to use that prohibits the keeping of cats and dogs on the land other than “assistance animals” as defined by the Companion Animals Act 1998. The restriction to benefit and burden the residential allotments within the estate with [Byron Shire] Council having the right to release vary or modify the restriction.

147 As is helpfully explained in Edgeworth, Butt’s Land Law (7th Ed, 2017) at [10.610], s 88B of the Conveyancing Act, which came into force in 1964, is intended to overcome difficulties in ensuring the mutual enforceability of covenants between owners of land sold as part of a subdivision or estate under equitable and common law principles.  Section 88B(2) provides that, when a plan of subdivision is lodged with the Registrar-General for registration or recording under Div 3 of Pt 23, the plan must indicate what restrictions on the use of the land or positive covenants, if any, are intended to be created benefiting or burdening land comprised in the plan.  On registration, any restriction on the use of land is created and annexed to the land benefited by operation of s 88B(3)(c).  Further, by operation of s 88(3)(c) of the Conveyancing Act, a restriction recorded in the folio of the register for the land burdened is an “interest” within the meaning of s 42 of the Real Property Act 1900 (NSW) as a result of which a transferee of the land holds the land subject to the restriction on use recorded in the folio.

148 Thus, as Butt’s Land Law explains at [10.690]:

The covenant is automatically “annexed” to the land benefited:  s 88B(3)(c)(ii).  The section therefore enables a vendor to annex the benefit of covenants to all lots in the plan, from the outset.  This obviates the problem that the benefit of a covenant cannot be annexed to land that the covenantee has already disposed of.

149 In addition, s 88B(4) of the Conveyancing Act provides that any such restriction has effect for the purposes of the Conveyancing Act and the Real Property Act as if it were contained in a deed.

150 Section 88H of the Conveyancing Act, in turn, provides that where a person has engaged in or is proposing to engage in conduct which would contravene a covenant imposing a restriction on the use of land or a positive covenant, the Court may, on the application of a person having the benefit of the covenant, grant an injunction.  To illustrate the point, in the case of condition 84(d), s 88H applies to the subdivisions such that, by virtue of Owner A having the benefit of the restriction on the use of the subdivision owned by Owner D who keeps domestic cats on their property, Owner A may enforce the s 88B restriction by seeking injunctive relief against Owner D who has contravened the covenant.

5.8.2    The applicant’s contention that the condition will not be effective

151 The applicant submits that condition 84(d) will not be effective, with the result that there is a real, as in not remote, chance that the Development will cause a substantial increase in the pressure from dogs and cats on threatened species, for two reasons: the greatly increased number of residences; and the proximity to the threatened species’ habitat. In support of its submission, the applicant relies on Mr Robertson’s evidence (in the context of the joint expert report with respect to the LN Potoroo) that the residential areas to the north of the Site were the likely source of “the majority of cat and dog pressure on the species”.  The applicant also relied upon Mr Robertson’s evidence (with which A/Prof Wardell-Johnson concurred) that other developments within Local Government Areas, such as the Port Macquarie Hastings council area, have been unable to successfully implement a s 88B restriction.

152 In my view, the applicant’s submissions should be rejected.

153 First, the parties rightly accepted that the various opinions of the species experts as to the likelihood that the Council will enforce condition 84(d) of the Consent cannot assist the Court.  This is simply outside the experts’ specialised knowledge for purposes of s 79 of the Evidence Act.

154 Secondly, for the reasons given earlier, while the ultimate statutory question is whether there is a real, as in not remote, likelihood of a significant (adverse) impact on the species, it is for the applicant to prove to the ordinary standard of proof, the facts on the basis of which it asks the Court to find that such an impact is likely in the statutory sense:  Strathbogie (FCA) at [348] and [384] (Horan J).  The applicant’s submissions fail to draw this distinction, effectively importing the ultimate statutory test into proof of the individual facts on the basis of which the Court is asked to find that a significant, ie real and not remote, impact on the species is likely.

155 Thirdly, the fact that there may be examples where such restrictions have not been effective, does not mean that they will not be observed here.  Thus, for example, Mr Robertson also gave evidence that there were examples of developments (such as that near Pottsville Koala Park) in which an equivalent development consent condition for the exclusion of cats and dogs had been successfully implemented.

156 Fourthly, as the respondents submit, only 12 lots in the existing residential development to the north of the Land have the same s 88B restriction on the keeping of cats and dogs on the Land.  That leaves 72 lots in that development (depicted below) which are not subject to this restriction.  The only condition relating to the keeping of dogs or cats on those 72 lots requires side and back boundary fencing to the satisfaction of Codlea Pty Ltd, the previous owner of the Land.

157 Finally, the applicant’s submission, with respect, takes Mr Robertson’s evidence out of context.  Mr Robertson also said that “[t]here are currently high levels of fox, cat and dog activity within the Development Site, with the degraded tracks throughout the conservation area providing significant ease of access for these invasive species throughout.”  He also considered that because of condition 84(b) of the Consent, the Development would not increase the prevalence of these domestic species.  To the contrary, he was of the opinion that “the regeneration works will decrease the presence of these all [sic] species including the Red Fox within the conservation areas” thereby reiterating his opinion that the regeneration of tracks will restrict invasive pest access into potential LN Potoroo habitat.  As such, Mr Robertson’s evidence does not support the proposition that the Development is likely to increase the risk of predation by dogs and cats on the relevant listed threatened species.

5.9    Long-term protection of the management zones

158 As earlier explained, the management plans contain a detailed, binding regime for the management of the management zones and associated infrastructure (such as artificial frog ponds) during the construction period.  The Vegetation MP sets out KPIs to be achieved in the Vegetation management zones including with respect to weed control, installation of fauna nest boxes and artificial habitats, replacement of failed plantings, and ripping of sandy areas to achieve native cover.  These KPIs must be met before the Development is able to progress to the occupation phase.

159 The applicant, however, submits that the management plans provide no effective long-term protection for the management zones in the post-occupation phases of the Development.

5.9.1    Effectiveness of protections affecting the WSF for the first 5 years post-occupation of the Development

160 The applicant submits that the Wallum Froglet MP does not stipulate any enforceable obligations to take action if the monitoring reveals that the WSF habitat performance criteria are not met.  Nor, in its submission, is any remedial action required if WSF are not detected in the artificial ponds or the relevant contractor fails to curtail pest animal invasions during the 5-year period post occupation.  The applicant therefore contends that, once construction works are complete, the various permits have been issued, and residential occupation begins, the management plans make no provision for enforcing the residual obligations under the Surface Water and Groundwater MP 12-month post-occupation regime, or the Wallum Froglet MP 5-year post occupation regime.

161 However, with respect to the occupation phase, the Planning Agreement provides that “MZ 2a must remain as a wetland/wet heath community (acid frog habitat)” while “MZ 3a/3b must remain as heath which provides acid frog and threatened species habitat”, with obligations imposed to remove trees which may close out the canopy and cause a reduction in the quality of the created habitat (emphasis in the original).

162 Furthermore:

(1)    the Surface Water and Groundwater MP provides for surface water and groundwater monitoring to continue monthly for 12 months from the issue of the final Subdivision Works Certificate, with six monthly reports to be prepared detailing monitoring results in compliance with condition 9 of the Consent; and

(2)    the Wallum Froglet MP provides for certain monitoring tasks to be conducted quarterly for five years post-occupation.

163 Enforceable protection with sanctions for non-compliance under the EP&A Act (NSW) is provided, as the respondents contend, by the VPA, including after residential occupation commences.

5.9.2    Long-term protection of the management zones

5.9.2.1    The applicant’s submissions

164 The applicant submits that there are obvious deficiencies in the long-term arrangements for management of the management zones which include the following.

(1)    the KPIs set out in Table 10.1 of the Vegetation MP are “aspirational” only in that no compulsory actions or repercussions are triggered if KPIs are not achieved;

(2)    there is no obligation to remove invasive species, such as the cane toad, and no obligation to ensure that saw-sedges and other plants intended to exclude such species are maintained and replanted.  Mr Warren’s and Mr Robertson’s confidence regarding these matters did not marry with the absence of any long-term management arrangements;

(3)    the Council has no obligation to rehabilitate tracks in MZ-1 because the land is privately owned and the second respondent has no such obligation because there is no provision in Table 10.1 requiring such rehabilitation;

(4)    the Council has no obligation to maintain the management zones (other than MZ-3) because they are privately owned lands;

(5)    there is no provision for maintenance of the perimeter swales;

(6)    there is no provision for monitoring, maintaining or repairing the artificial frog ponds; and

(7)    there are no enforceable provisions whereby the second respondent can be required to remove rubbish and weeds, protect native species and frog habitat, or remove non-heath vegetation.

165 As I shortly explain, the applicant also raises issues concerning the capacity of the Council and the second respondent to fund compliance with conditions in the post occupation stage of the Development.

166 A number of these submissions are dealt with in the context of addressing the likely impacts on specific listed threatened species.  However, the reasons for rejecting the applicant’s proposition that there are no effective long-term arrangements for the management of the management zones may be conveniently addressed here.

5.9.2.2    Dedication and effective ongoing management of the management zones

167 After the residual obligations under the Consent come to an end, conservation of the Land will be governed by the VPA between the second respondent and the Council dated 6 September 2023.  The VPA was made under s 7.4 of the EP&A Act (NSW) and applies to the Land and the Development:  see cll 2.1 and 4.1 respectively of the VPA.  Section 7.4(1) relevantly provides that:

A planning agreement is a voluntary agreement or other arrangement under this Division between a planning authority (or 2 or more planning authorities) and a person (the developer)--

…

(b)     who has made, or proposes to make, a development application or application for a complying development certificate, or

(c)     who has entered into an agreement with, or is otherwise associated with, a person to whom paragraph (a) or (b) applies,

under which the developer is required to dedicate land free of cost, pay a monetary contribution, or provide any other material public benefit, or any combination of them, to be used for or applied towards a public purpose.

168 A “public purpose” under s 7.4(1) of the EP&A Act (NSW) relevantly includes:

…

(e)     the monitoring of the planning impacts of development,

(f)     the conservation or enhancement of the natural environment.

169 Section 7.4(3) of the EP&A Act (NSW) provides that a planning agreement must provide for certain things, including the nature and extent of the provision to be made by the developer under the agreement, the development, and “(g) the enforcement of the agreement by a suitable means, such as the provision of a bond or guarantee, in the event of a breach of the agreement by the developer.”  A planning agreement is void to the extent to which it allows anything to be done which would breach s 7.4 of the EP&A Act (NSW), an environmental planning instrument, or a development consent applying to the Land:  s 7.4(10).

170 As such, the legislative scheme for the conclusion of a voluntary planning agreement requires provision to be made for enforcement “by suitable means”.

171 Under the VPA, the second respondent and the Council agreed as follows:

(1)    The second respondent is to dedicate MZ-3A and MZ-3B (described as proposed Lot 521 in the VPA) to the Council as a public reserve.  (I note that MZ-3 contains the central artificial frog ponds, the management of which will thereby become the responsibility of the Council, as well as the existing north-south drain, the new (realigned) north-south drain, and the proposed community garden).

(2)    Prior to or on registration, Part Lot 324 (which includes MZ-1 and MZ-2) will be burdened with a covenant under s 88E of the Conveyancing Act which is to be substantially in the following terms:

To provide for the conservation of the land, that part of the Lot in the Development which is generally to the east of Road 2 as shown on plan DA4 Issue C dated 16.11.2022 filed with the Development Application 10.2021.515.1 for the Development, and referred to as XXX on the plan, is to be conserved, managed and maintained by the owner of the Lot burdened in accordance with the relevant requirements of the Vegetation Management Plan prepared by Australian Wetlands Consulting revision J dated 09/11/2022, and the Concept Plan Approval 05_0091 dated 9 July 2013.  The owner of the Lot may not make use of that part of the Lot referred to as XXX on the plan for any purpose other than permitted by the Vegetation Management Plan or Concept Plan Approval.

This covenant may not be revoked, varied or modified without the prior consent of the Byron Shire Council as Prescribed Authority.

(See the definition of “covenant” in cl l 1.1 of the Planning Agreement and Schedule 2 to the Agreement.)

(3)    A covenant to a similar effect is to be created prior to the registration of Part Lot 402 as defined in the VPA, which includes MZ-4.

172 Clause 1.1 of the Planning Agreement defined “Covenant in relation to land” to mean “a public positive covenant under s88E of the Conveyancing Act 1919 burdening Lot 324 and Lot 402 in the Development to the satisfaction of the Department of Planning and Environment consistently with Schedule 2” in line with s 7.4(3)(g) of the EP&A Act (NSW).

173 It follows that the only management zone for which the Council will be responsible for maintaining after completion of the Development is MZ-3.  The applicant submitted in closing that it can be inferred that the Council will be unable to maintain MZ-3 for budgetary and personnel reasons.  However, as the respondents correctly submit, such an inference cannot be drawn on the evidence and is purely speculative.  First, as the respondents contend, they are required by cl 85 of the Consent to pay $1.3 million in developer contributions to the Council prior to the release of a subdivision certificate.  Further, the Development will generate an additional income stream to the Council in perpetuity from rates levied on the residential lots created by the Development.  It thus follows that the applicant’s contention that the Council will not be able to maintain MZ-3 is contradicted by the evidence.

174 With respect to MZ-1, MZ-2 and MZ-4, the applicant also contends that there is no effective remedy should the second respondent breach the Vegetation MP.  The applicant accepts that the VPA permits the Council to recover the cost of remedying any such breach as a debt in the event that the second respondent is in breach of its obligations. However, in its submission, upon sale of the subdivided lots, the only asset of the second respondent, which owns the Land, is likely to be the management zones.  These zones, the applicant contends, carry with them only burdens and no benefits for the owner – and are therefore effectively worthless.  Nor does the VPA provide for directors’ guarantees (see cl 14). Moreover, the applicant submits that, once the project has been completed and the management bond has been repaid because the defects have been fixed, at some stage the dividends will be paid out to the owners.  For these reasons, the applicant contends that in the likely event that upon completion of the Development the second respondent has no assets of value and cannot (for lack of funds) perform its obligations under the Vegetation MP, the Council appears to have no effective remedy.

175 However, as the respondents submit, the applicant’s submission is purely speculative and was not, in any event, put to Mr Fletcher, contrary to the rule of procedural fairness in Browne v Dunn (1893) 6 R 67.  Mr Fletcher is the Development Manager of the first respondent who is responsible for the day-to-day management of the Development and gave evidence for the respondents.  As such, the submission should be rejected.

176 The applicant’s submissions in support of the proposition that there is no effective longer-term protection for the management zones otherwise overlook the nature of the scheme put in place in order to do precisely that.

177 First, as the respondents submit, enforceable protection with sanctions for non-compliance is afforded by the Consent and the Planning Agreement, including after residential occupation commences. Furthermore, by an order pursuant to cl 34A(3) of the Biodiversity Conservation (Savings and Transitional) Regulation 2017, a delegate of the Secretary of the Department of Planning, Industry and Environment certified on 30 March 2023 that:

(a)    the proposed development (the proposed development) is part of a concept plan approval (the concept plan approval) for which the biodiversity impacts of the proposed development have been satisfactorily assessed before 25 August 2017, and

(b)    that conservation measures to offset the residual impact of the proposed development on biodiversity values after the measures required to be taken to avoid or minimise those impacts have been secured into the future.

(Emphasis added.)

178 Secondly, cl 1 of the Consent imposes an obligation to carry out the Development in accordance with the approved plans and supporting documentation stamped by the Council save where the conditions of the Consent expressly require otherwise.  As earlier explained, it is an offence under the EP&A Act (NSW) not to comply with a condition of the Consent, including by failing to comply with the approved management plans.  In turn, condition 46 of the Consent requires an application for a subdivision work certificate to include an updated Construction Environmental MP for each stage prior to the release of any subdivision certificate or construction certificate.  It follows that the actions and KPIs required to be met under the approved plans are not merely aspirational, contrary to the applicant’s submissions.

179 Thirdly, as explained above, MZ-1, MZ-2 and MZ-4, which will remain in private ownership, must be managed and maintained in accordance with the Vegetation MP in perpetuity as a result of the Planning Agreement.  Irrespective of whether their rights have been infringed,  s 9.45 of the EP&A Act (NSW) confers standing on “any person” to bring proceedings for an order to remedy or restrain a breach of the EP&A Act (NSW) including a planning agreement referred to in s 7.4, by reason of the definition in s 9.44(b)(vi).  Section 9.46 in turn provides that where the Court is satisfied that a breach has been, or will be, committed, it may make such orders as it thinks fit to remedy or restrain the breach, including by requiring the reinstatement, so far as practicable, of the land to the condition it was in immediately before the breach.  It follows, contrary to the applicant’s submissions, that the remedies available to the Council for any breach of the second respondent’s obligations under the VPA are not limited to the recovery of the cost of any such breach as a debt.

180 Fourthly, condition 104 of the Consent applies “At All times” to MZ-1, MZ-2 and MZ-4, and provides that:

The eastern residual part of Lot 324 and south western residual part of Lot 402 must be managed to prohibit the following:

a.    the destruction or removal of any local indigenous trees, shrubs, grasses or other vegetation, or the planting of any flora other than local indigenous flora,

b.    any act or omission which may adversely affect any local indigenous flora or any indigenous fauna or their related habitats,

c.    any act or omission which may result in the deterioration in the natural state or in the flow, supply, quantity, or quality of any body of water or in the natural moisture regime of the area,

d.    the creation or maintenance of any tracks through the area,

e.    the removal, introduction or disturbance of any soil, rock, or other minerals,

f.    any structures or dwellings,

g.    the dumping of rubbish or refuse, including garden refuse and weed propagules, nor the use of any of the area for storage of any substance or material.

181 Fifthly, condition 8 of the Consent requires the Construction Environmental MP among other things to report on the monitoring requirements in the Acid Sulfate Soil Management Plan (ASSMP), Stormwater MP, Surface Water and Groundwater MP, Unexpected Finds Protocol (UFP), Vegetation MP, and Wallum Froglet MP and to remedy failures, including after construction is completed.  Specifically, condition 8 provides that:

a.    Analysis of all monitoring and sampling data against baseline data and approved thresholds (in the approved CEMP), limits and triggers; and

b.    At least six (6) monthly reporting during subdivision construction works for at least five (5) years or until two years following the issue of a subdivision certificate for Stage 5, whichever is the later; and

c.    Reporting on the performance of the road pavement, bioretention basin, bio pods and the North-South drain by the project engineer or other professional with sufficient experience… for Council’s acceptance demonstrating compliance with the Approved Design; and

d.    In the event the report required by item c identifies failures, the report shall provide an alternative design that will prevent future and ongoing failures for the civil works of the subdivision; and

e.    Annual reporting hereafter until the final maintenance bond is returned.

182 Sixthly, contrary to the applicant’s understanding of the ongoing requirements of the Vegetation MP in the occupation phase, table 8.2 of the Vegetation MP requires prescribed management actions to be maintained for five years or until nominated KPI’s have been achieved to the Council’s satisfaction.  As earlier explained, it also imposes obligations on the second respondent as the MZ owner, including ensuring that MZ-2a remains an acid frog habitat.  Additional post-construction requirements for the MZ owner are also set out in the Vegetation MP in section 10 and table 10.1 including protection of sensitive species and habitats in all management zones and specific provisions with respect to maintenance of wetland/wet heath community and acid frog habitat for MZ-2a and MZ-3.  (I note that there are no equivalent requirements for MZ-4 because this management zone does not contain newly created frog habitat but only existing habitat.)

183 In the seventh place, the Wallum Froglet MP also imposes substantial and enforceable obligations to achieve certain performance criteria throughout the five-year monitoring period which are considered later in the context of addressing whether the Development will have a substantial impact on the WSF.  These include a Trigger Response Plan for additional actions in retained and constructed areas of WSF habitat if performance criteria are not met in relation to water quality, vegetation, weed control, populations, cane toads and mosquito fish.

184 In addition, the applicant’s submissions as to the alleged “obvious deficiencies” in the long-term arrangements with respect to the Consent and associated documents overlook the following matters:

(1)    the Wallum Froglet MP and the Trigger Response Plan contained therein;

(2)    the Vegetation MP, which applies (as earlier explained) in perpetuity under the Planning Agreement, creates an obligation on the MZ Owner to protect “sensitive species and habitats” and the Wallum Froglet habitat in MZ-2 and MZ-3b;

(3)    the requirements for the rehabilitation of tracks in the management zones to be continued for five years or until nominated KPIs are achieved, with specified performance criteria for both retained and constructed habitat area;

(4)    absent compliance with KPIs, the Vegetation MP will not move to the occupation phase; and

(5)    that condition 30(n) of the Consent requires the submission and approval by the Council of a “Bioretention basin construction and maintenance management plan”, including a maintenance plan after completion.

185 As to the last of these matters, condition 97 (as earlier explained) also requires the developer to submit an annual report to the Council containing inspection records that identify all defects and rectification works.  The reports should contain details about weed removal, replanting to replace failed plants, and measures to increase plant health and achieve plant survivorship greater than 90%, compliance with which is secured by a maintenance bond held by the Council for a two-year period from completion of defect repairs.

5.10    Allegations that the respondents ignored requests for a referral under the EPBC Act and provided a misleading Due Diligence report

186 In oral closing submissions, the applicant – for the first time – alleged that the respondents ignored multiple requests for the Development to be referred to the Commonwealth for assessment under the EPBC Act and provided a misleading Due Diligence report advising that the Development did not require an EPBC Act referral for matters of national environmental significance.  The report in question is the EPBC Act Due Diligence Assessment – Wallum Estate, Brunswick Heads, NSW, 2483 dated January 2024 which was prepared by AWC who had been engaged by the first respondent to conduct the assessment (the Due Diligence report).

187 The applicant’s criticisms of the respondents’ interactions with the Commonwealth Department in relation to the need for a referral and the Due Diligence report were neither explained, nor obvious.  In any event, as I explain below, I agree with the respondents that the evidence does not establish that they ignored multiple requests to refer the matter to the Commonwealth for assessment.

188 First, the applicant relies upon correspondence and the short review of the Due Diligence report by Daniel Perkovic attached to an email from the Department on 21 December 2023 (Daniel’s review) (discussed below).  However, these were received subject to a limitation under s 136 of the Evidence Act in that they were not to be used for a hearsay purpose or received as opinion evidence.

189 Secondly, on 22 September 2023, the Director, Northern NSW Assessments, from the Department recommended that the proposal be referred to enable a decision to be made on whether approval is required under the EPBC Act “based on the limited information” then available to the Commonwealth Department.  The letter identified five nationally protected matters considered relevant to the proposal on the basis of that information being the Koala, the SEGB Cockatoo, the WSF, the Grey-headed Flying-fox, and the Australasian Bittern.

190 However, far from ignoring that recommendation, the respondents engaged with the Commonwealth Department in a responsible manner consistent with their obligations under the EPBC Act through repeated email correspondence, and provided the peer-reviewed Due Diligence report to the Department in support of their position that no referral was required.  AWC also stated in emails that it had reviewed the Daniel’s review of the Due Diligence report which was provided by the Department on 21 December 2023 to assist the respondents with their self-assessment and, in response, provided supplementary information and assessment in the report on 25 January 2024.  Based on this further information, no further recommendation was made by the Department for the respondents to refer the proposal to the Commonwealth Minister to consider whether approval was required.  Nor at any time was any formal request made by the State, Minister, or Commonwealth agency in the exercise of their statutory powers under ss 69, 70 and 71 of the EPBC Act, respectively, to refer, or request referral of, the proposal to the Commonwealth Minister.

191 Finally, I reject the applicant’s criticisms of the Due Diligence report as having made a “directly deceptive comment repeated on several occasions” about the MRS, given “directly misleading information” about the Koala and SEGB Cockatoo, and made a “false statement” about tree removals.  While none of the authors of the Due Diligence report gave evidence, none of these allegations were put to the parties’ experts for comment and discussion in the context of the joint reporting process despite the seriousness of the allegations; nor were they put to the respondents’ experts in cross-examination.  Nor was the applicant’s submission that there was no reference in the Due Diligence report to the LN Potoroo correct.  To the contrary, p. 6, the Due Diligence report refers to AWC’s survey effort for the BDAR as involving 20 terrestrial PIR (passive infrared) cameras set for 30 nights from 15 February to 17 March 2022 to record any LN Potoroo presence which failed to identify any LN Potoroos on the Site:  see also at p. 17 of the Due Diligence report.

6.    THE MANAGEMENT PLANS AND ASSESSMENTS

192 A detailed, complex and comprehensive suite of obligations is imposed with respect to the Development under the various environmental management plans and species management plans approved as part of the Consent.  An understanding of this regime is essential in order to make an assessment of likely adverse impacts.

6.1    Construction Environmental Management Plan

193 The Construction Environmental MP covers the works relating to MZ-2, MZ-3 and MZ-4.  As earlier explained, the Construction Environmental MP is a comprehensive overarching document which applies to the whole site from site preparation and early works through to completion of construction.  The purpose of the Construction Environmental MP is “to minimise the risk of environmental harm, to satisfy legal obligations and ensure best environmental practice during the construction of the project”.

194 Thus, the primary aim of the Construction Environmental MP is:

…to provide contractors with information and guidance to fulfil their responsibilities to minimise the impacts to the environment and wider community during the works. The scope and application of this CEMP are outlined in Table 1-2.

This CEMP outlines measures that will be undertaken by the construction contractor to manage impacts to the natural environment and prevent foreseeable nuisance and health impacts on sensitive receivers as a result of the construction works.

This CEMP provides management measures to mitigate impacts to water quality, vegetation, fauna, air quality, noise and cultural heritage. This CEMP applies to the lead contractor, sub-contractors and Byron Shire Council personnel working on the site and any workers or visitors onsite. Table 1-2 will be the basis for the recommended adaptive management approach towards environmental management and any audits completed as discuss below in the following sections.

195 The Construction Environmental MP is required to draw together the monitoring requirements in each of the ASSMP, Stormwater MP, Surface water and Groundwater MP, UFP, Vegetation MP and Wallum Froglet MP and also to provide for at least six monthly reporting on compliance for at least five years during subdivision construction works, or two years following the issue of a subdivision certificate for stage 5 (whichever is the later), and annual reporting after that until the final maintenance bond is returned, which will be no earlier than two years after completion of the last stage of the Development.

196 Each application for a subdivision works certificate is to include an updated Construction Environmental MP for each stage.  The Construction Environmental MP is to document all environmental commitments for each stage of the Development and is to be developed so as to take into account any new information gathered from ongoing monitoring and modelling.  Further, it is to be adapted as necessary to accommodate any necessary design changes and contingency measures that may arise.  The application for a subdivision certificate for each stage must be accompanied by a “Completion Report – Environmental Reporting and Compliance”.  That report must demonstrate full compliance with the approved suite of environmental management plans and, in each case, is to be peer reviewed by an independent environmental expert in an independent report that is to be submitted to the Council.  Any non-compliance must be addressed before commencement of the following stage and could be relied on by the Council in considering whether to approve a subdivision works certificate for the following stage.

6.2    Revised Vegetation Management Plan

197 The Vegetation MP was prepared in compliance with condition C6 of the concept plan approval.  That condition provides:

The proponent is to submit with the first development application, a Vegetation Management Plan to apply to the land that comprises public reserve on the site.  The plan shall be prepared in consultation with OEH and council and shall include, but not be limited to:

a)    dimensions of the reserves;

b)    details of how any rehabilitation within the reserves is to occur;

c)     actions required to protect and improve habitat for threatened species including Koala, Glossy Black Cockatoo and Wallum Froglet as well as actions to re-establish habitat for threatened species on cleared lands;

d)     measures to control weeds;

e)     details of any fencing to protect the reserves;

f)     identification of timeframes and responsibilities for each action;

g)     bushfire management;

h)     measures to control public access within the reserves to minimise damage; and

i)     details of future management and funding arrangements for the areas and measures to be implemented for the long-term protection of the areas, for example, through dedication.

198 The Vegetation MP’s stated aim is “to retain consolidated vegetation communities, re-establish degraded areas of vegetation outside of the development footprint within designated Management Zones and thereby improve threatened species habitat”.  To achieve this aim, the Vegetation MP’s objectives are to:

* Protect and maintain existing vegetation outside of the development footprint

* Undertake rehabilitation works in areas of degraded native vegetation

* Restore degraded/disturbed native vegetation to a level that reflects the cover, diversity and density of existing intact native vegetation

* Introduce measures to control human impacts to areas of retained and restored vegetation

* Manage and maintain vegetation to provide suitable habitat for fauna, particularly where habitat for acid frogs requires intervention to maintain biodiversity values.

199 In relation to the vegetation condition of the site, the Vegetation MP records that, with the exception of the highly modified (slashed) heathland in the central portion of the site (which is much of the Development Footprint), vegetation communities “are generally in good condition, are relatively undisturbed and environmental weeds occur very infrequently.”

200 It also records, in relation to weeds on the Site, that:

Vegetation at the site is generally in excellent condition, showing high resilience and weeds occur at very low incidences. This is primarily due to the sites occurrence on low fertility soils which do not provide suitable conditions for broadscale establishment of common woody weeds such as Camphor Laurel, Privet or Lantana). Weed species outside of the development footprint are largely limited to the west of the site and include Umbrella Tree, Coral Tree and an infestation of Kahili Ginger. A vehicle track along the powerline in this area is dominated by pasture grass. The eastern portion of the site is very clean and woody weeds are absent; Whiskey Grass occurs very infrequently along tracks and disturbed areas. In the north of the site adjacent to the pre-school, two small patches of Coastal Swamp Forest support occasional woody weeds (Camphor Laurel, Umbrella Tree); Fishbone Fern is also present.

201 Section 6 of the Vegetation MP is titled “Restoration and Establishment Activities”.   It states at sections 6.3.1 and 6.7.1 (which relate to MZ-1 and MZ-4 respectively) in relation to the MRS that:

Areas of suitable habitat for Mitchell’s Rainforest Snail within MZ1 and MZ4 will consist of slightly elevated ground on the margins of coastal wetlands or narrow strips of rainforest vegetation with a well-developed moist leaf litter layer with dead palm fronds (refer Figure 6.2). Management actions with these areas will consist of:

* Maintenance of microclimates surrounding areas of suitable habitat in proximity to the development footprint through:

* Staged weed control i.e., removal of portions large weed infestations followed by infill plantings to increase canopy cover if this cover falls to less than 70%.

* Hand weeding and no herbicide use in areas that provide suitable habitat.

* Retention of a dense leaf litter layer and dead palms fronds.

* Establishment of ‘No-Go Zones’ in areas where suitable habitat is identified, and where no weed control works are required.

202 The Vegetation MP contains a table that sets out the KPIs up to the fifth year.  The KPIs include:

Removal of environmental weeds and implementation of ripping within degraded areas or informal tracks, which is to be completed within year 1.

Installation of “no go” fencing prior to and during construction, which is to be completed within year 1.

Installation of fauna nest boxes and artificial habitats, to be completed within year 1.

Follow up removal of environmental weeds and monitoring of areas where ripping has been completed, to be completed within year 2.

A further follow up removal of environmental weeds and monitoring of ripping areas, to be completed in year 3.

Prescribed densities of plants from ripping and / or planting sandy areas are achieved per monitoring requirements, to be completed in year 4, and then again in year 5.

203 The KPI table also imposes certain “hold points”, such that the actions in years 1 and 2 must be achieved prior to progressing to the actions in years 3 and 4 and so on.

204 Section 9 of the Vegetation MP sets out the comprehensive monitoring to be undertaken for revegetation and restoration works as prescribed by the Vegetation MP.  It also requires reporting on the progress of works undertaken pursuant to the Vegetation MP to ensure the KPIs (which I set out above) are being met.

205 Section 10 of the Vegetation MP sets out the “ongoing management following establishment” and records:

Once the restoration and establishment phases are complete, management zones will be transferred to their respective owners for management. It is anticipated that monitoring and management activities will be periodic and minor assuming all KPI’s have been achieved in previous phases, however issues may arise periodically or over time which must be addressed to ensure management objectives are maintained (eg. Maintaining a canopy free zones in acid frog habitats to maintain biodiversity values).

206 It then sets out the following table of actions to be undertaken either quarterly or annually by the owner of the management zones:

6.3    Hydrogeological Assessment

207 The applicant’s contention arose in the context of the document titled “Hydrogeological Assessment: Proposed Residential Subdivision, 15 Torakina Road, Brunswick Heads, NSW” dated 25 August 2021 and prepared by Martens Consulting Engineers (also referred to as Martens & Associates Pty Ltd).  The Hydrogeological Assessment contains the following executive summary:

Martens & Associates Pty Ltd (MA) have prepared this this hydrogeological assessment to support a development application for a proposed residential subdivision at 15 Torakina Road, Brunswick Heads (the site). This report documents the procedures and findings of hydrogeological modelling of the site in existing and proposed conditions.

The investigation found:

1.    The proposed development is not likely to adversely impact groundwater levels within nearby identified frog habitat areas or the high priority groundwater dependent ecosystems (GDEs) near to the development.

2.     The proposed stormwater management system will not detrimentally interfere with local groundwater conditions.

3.     The proposed development complies with the NSW Aquifer Interference Policy.

208 The Hydrogeological Assessment recorded that it should be read in conjunction with the Stormwater Management Plan, which I set out in detail below.

209 The Hydrogeological Assessment’s scope and objectives were to:

review and analyse existing hydrogeological data for the site and study area;

analyse results from site groundwater field investigations;

prepare a numerical groundwater model for the existing and proposed conditions at the site;

analyse the groundwater model results to assess long-term effects of the development on the local groundwater system; and

assess any groundwater impacts in relation to the Aquifer Interference Policy.

210 Section 3.8 of the Hydrogeological Assessment sets out the results of the sampling taken in relation to the groundwater quality.  The samples were undertaken at 10 monitoring wells on 7 and 8 June and 6 July 2021.  The data was set out in a table, which is reproduced below:

211 The Hydrogeological Assessment made the following observations in relation to the data reproduced at paragraph 210 above:

We note from the data:

1.    Site groundwater is acidic.  Minimum and maximum pH values were 3.6 and 5.0 respectively.

2.    Groundwater had an average electrical conductivity (EC) of 140 μS/cm. Groundwater is therefore generally fresh.

3.    Data analysis indicates both Total Nitrogen (TN) and Total Phosphorus (TP) concentrations are above the trigger values and indicating degraded groundwater quality.

(Emphasis added.)

6.4    Supplementary Hydrogeological Assessment

212 In August 2023, the “Supplementary Hydrogeological Assessment: Proposed Residential Subdivision 15 Torakina Road, Brunswick Heads, NSW” (Supplementary Hydrogeological Assessment) was prepared to address condition 7(a) of the Consent.  Condition 7(a) provided as follows:

7.    An amended Wallum Froglet Management Plan to be submitted to Council for approval prior to the issue of the Subdivision Works Certificate.  The amended WFMP must contain a review of engineering plan including Basin Layout plans … In particular the amended plan is to address:

a.    Modelling results in terms of potential zero drawdown of groundwater levels in the retained habitat area (MZ-3A) adjacent to the proposed new stormwater drain, and a description of how such changes to hydrology and water quality / chemistry will be managed in the context of recreating Wallum froglet habitat and the existing habitat within the existing drain.

213 The Supplementary Hydrogeological Assessment set out its scope and objectives as follows:

1.    Review and analyse the most recent groundwater monitoring data for the study area.

2.    Update and refine the pre-development conditions groundwater model to ensure calibration with all groundwater monitoring data.

3.    Update and refine the post-development conditions groundwater model to reflect updates to the design of the proposed development layout, stormwater management works, and Wallum Froglet breeding ponds.

4.    Review the design of the Wallum Froglet breeding ponds in relation to the post-development groundwater conditions.

214 The Supplementary Hydrogeological Assessment set out updated statistical analyses of groundwater levels.  It concluded that the groundwater table “is highly dynamic and responsive to direct rainfall”.

215 The calibration results differed slightly from the original Hydrogeological Assessment, but the ultimate conclusion remained unchanged.  It provided as follows:

The model’s normalised RMS [(root mean squared)] was 9.2 % with an absolute residual mean of 0.08 m and a residual mean of -0.06 m which indicates a bias towards a slight under-prediction of head. The mass balance discrepancy was 0.01 % and therefore acceptable being below the adopted threshold of 1.0 %.  Overall, the predicted pre-development conditions model closely replicates the observed GW level data and the model was considered satisfactory for predictive purposes.

216 In relation to changed groundwater levels at existing frog habitats, the Supplementary Hydrogeological Assessment recorded that the modelling:

…indicates that there is a potential for around 0.1 m of drawdown to occur in some portions of the central and eastern retained frog habitats, and for an increase of around 0.1 m in the northern fringes of the central and western retained frog habitats.

These potential modifications are not considered significant because they are minor and will not be material when considered within the context of the naturally highly dynamic water table that occurs within the site where daily and seasonal water table fluctuations are common.  We note that there are inherent uncertainties in any numerical model arising from assumptions made while simplifying a complex natural regime to a number of fundamental computational parameters and therefore these predicted drawdowns may in fact be over-estimated by the modelling undertaken.

217 Relevantly, as well, the Supplementary Hydrogeological Assessment recorded in relation to the breeding ponds:

Drawdown results … show that groundwater levels at the proposed Wallum Froglet breeding ponds remain relatively unchanged (within 0.1 – 0.2 m of pre-development conditions) post-development.  MA note that we have provided the post-development groundwater levels to AWC, and we understand that the locations and depths of the proposed breeding ponds have been designed in consideration of the predicted post-development groundwater levels.

Notwithstanding this, we understand that the ponds will be constructed under supervision of AWC and that following construction of the ponds, monitoring will be occurring to ensure that the ponds interact with the groundwater table in the correct way to produce the optimum ecological conditions for the frog species.

218 Ultimately, the Supplementary Hydrogeological Assessment concluded that:

1.    The updated and refined pre-development groundwater model produced groundwater level which were closely aligned to both the previous groundwater assessment modelling, and an additional 18 months of groundwater monitoring data.

2.    The proposed development is not predicted to adversely impact groundwater levels within nearby high priority GDEs or retained frog habitat areas.

3.    The proposed frog breeding ponds have been designed in consideration of the post-development groundwater levels predicated [sic] by this assessment.

219 The Supplementary Hydrogeological Assessment then provided its recommendations, namely:

1.    Frog breeding ponds construction is supervised by an ecologist to ensure that the correct degree of groundwater interaction is achieved.

2.    Groundwater levels at the constructed frog breeding ponds should be monitored for a period of 12 months following construction to confirm design objectives.

6.5    Surface Water and Groundwater Management Plan

220 AWC was engaged to prepare a Surface Water and Groundwater MP for the Development.

221 As to the topography of the site, the Surface Water and Groundwater MP records:

The site is relatively flat with a slight rise in the west.  A central constructed drainage line dominates the surface drainage, with lateral flows of groundwater expressing and flowing from the site…

The drainage line accepts surface flows (stormwater) from the existing urban area to the north.  There are various smaller constructed drainage lines delivering surface flows to the primary drainage line.

222 The Surface Water and Groundwater MP responds to conditions 9(a)-(f) of the Consent.  That condition provides:

9) Updated Surface and Groundwater Management Plan – Monitoring, Analysis, Modelling and Contingency management

Prior to issue of a subdivision works certificate for each stage, an updated Surface and Groundwater Monitoring Plan … shall be prepared and provided to Council for approval.

The SWGMP … shall be updated to include monitoring of groundwater levels and quality prior to, during and following construction of the subdivision works as they progress, including but not limited to:

(a)    Monitoring results of groundwater levels and quality from the commencement of Early Stage 1 works until the issue of a subdivision certificate for Stage 5 with submission of an updated report to Council prior to the issue of the subdivision works certificate for each stage of works;

(b)    Monitoring of groundwater levels and quality at the end of each Stage;

(c)    Monitoring of groundwater levels and quality monthly for 12 months following the issue of a subdivision certificate for stage 5; and

(d)    Targets for groundwater quality and levels and the commitment to use these targets in required routine reporting.

(e)    Groundwater data to be compiled and analysed and uploaded into a groundwater modelling report with updated results analysed; and

(f)    Contingency Management to resolve any unforeseen groundwater matters.

223 In line with condition 9, the purpose of the Surface Water and Groundwater MP is to provide “a framework to monitor and detect adverse impacts to the groundwater and surface water reserves of the property and management strategies to protect the downstream aquatic habitat”.  The primary objectives of the Surface Water and Groundwater MP include:

* Groundwater level and quality data have been collected forming a baseline data set with targets determined to detect adverse impacts

* Surface water quality data have been collected forming a baseline data set with targets determined to detect adverse impacts

* Specify a monitoring program for construction and occupational phases

* Establish action criteria for construction and occupation phase monitoring

* Provide an action response plan

224 The Surface Water and Groundwater MP also explains that it “is designed to be adaptive and will be reviewed and amended intermittently after evaluation of conditions, data and management strategies if required.”

6.5.1    Groundwater management

225 The Surface Water and Groundwater MP also records that the groundwater levels will be monitored across the site to determine whether the proposed Development will have any discernible effect on the groundwater regime in the short-to-long term.  The Surface Water and Groundwater MP goes on to record:

The hydrogeological assessment report (Martens 2021) shows an expected decreases [sic] in groundwater levels of up to 0.4 m in the developed portions of the site however in the surrounding areas, including wallum frog habitat, reductions in groundwater levels are limited to <. 1m.

226 AWC monitored groundwater levels at six locations on the site since January 2022.  A map identifying the location of each of the monitoring wells is reproduced below:

227 The results were recorded in a table, which is reproduced below:

228 The six monitoring wells identified above were also used to collect samples for the purpose of analysing the groundwater quality.  The Surface Water and Groundwater MP records that:

In respect of pH levels, the groundwater across the site is acidic with all mean values below 5.0.  The range of pH values at each site varies between 0.14 and 1.7 which is due to acid production through humic acid and peat reserves, and dilution from rainfall.  Wallum environments are naturally acidic with pH values routinely below 5.

In respect of nutrients, nitrogen and phosphorous are elevated across all monitoring wells.  All samples were reported to have total phosphorus (TP) values above the Australian and New Zealand Environment and Conservation Council (ANZECC) (2000) default of 0.035 mg/L TP.  Similarly, all results from all monitoring wells showed total nitrogen (TN) values above the ANZECC (2000) default of 0.3 mg/L TN.

229 The Surface Water and Groundwater MP states that all existing monitoring bores will be monitored for groundwater level and quality during the entire construction phase, which includes the time period from the commencement of subdivision construction works for early works and continues until construction is complete.  A report will be prepared at the end of each construction stage and will be issued to the Council.  The Surface Water and Groundwater MP further records that amendments can be made to the management plan and the monitoring program for each stage based on site conditions, previous monitoring, type and methods of subdivision works.

230 Table 3.9 sets out the monitoring to be conducted during the construction phase:

231 Table 3.10 sets out the groundwater monitoring to be conducted during the occupation phase, which is reproduced below:

232 In addition, the Surface Water and Groundwater MP records that four permanent monitoring sites have been installed and assessed in accordance with the BAM to determine a Vegetation Integrity Score for each vegetation plot of 20 x 50 m (0.1 ha).  Each plot has been permanently marked using star pickets, GPS coordinates and mapped.  The Surface Water and Groundwater MP further records that annual vegetation surveys will be undertaken at these four locations.

6.5.2    Surface Water management

233 The Surface Water and Groundwater MP contains a section on surface water management.  It records that:

In relation to pH, surface water across the site is acidic with mean values at SW-01-SW03 below 5.0, with variations in pH values between 0.53 and 1.69 pH points.  As for the surface water monitoring locations at SW04-SW06, these showed greater variation in pH values (1.34-2.39 pH points), which is “likely contributed to saltwater intrusion from Simpsons Creek during high tides”.  Further, “[w]allum environments are naturally acidic (acidophilic) with pH values routinely below 5.”

Total nitrogen (TN) and total phosphorus (TP) are routinely elevated across all monitoring locations.

234 The Surface Water and Groundwater MP also records that all existing surface water monitoring locations will be monitored for quality during the entire construction phase, in common with the groundwater monitoring plan.

235 Table 4.4 sets out the monitoring to be undertaken on the surface water during the construction phase, which is reproduced below:

236 Table 4.5 sets out the monitoring to be undertaken on the surface water during the occupation phase, which is reproduced below:

6.6    Stormwater Management Plan

237 The Stormwater Management Plan (Stormwater MP) dated 13 March 2023 was prepared by Martens Consulting Engineers for the Land.  The project scope and objectives of the Stormwater MP are as follows:

1.2 Project Scope and Objectives

Project scope and objectives are:

* Documentation of a water quality assessment completed using Model for Urban Stormwater Improvement Conceptualisation (MUSIC).

* Description of a treatment specification to achieve nominated water quality objectives.

* Documentation of the on-site detention (OSD) requirements for the development.

* Documentation of water quantity assessment modelling and results to achieve nominated water quantity objectives.

238 Details of the concept development layout with the proposed stormwater management system are provided in the CivilTech Consulting Engineers’ Stormwater plans.

239 Section 3.1 of the Stormwater MP titled “Adopted Stormwater Quality Objectives”.  It states that the proposed development is subject to the Council’s Development Control Plan and the State Environmental Planning Policy (SEPP).  The Development Control Plan requires pollutant reduction criteria for all stormwater flows of up to 25% of the one-year peak to be achieved at a minimum, that is, the policy requires a reduction in pollutants.

240 As to the SEPP, the Stormwater MP records:

…Given the sensitive nature of the Wallum Froglet habitats, a water quality strategy was developed to achieve a Neutral or Beneficial Effect (NorBE) on water quality for each existing and proposed Wallum Froglet habitat.

241 In other words, and as the respondent explained, the system has been structured so as to create a neutral or a beneficial effect (referred to as NorBE) on water quality.

242 The Stormwater MP records that it used a modelling methodology called “Model for Urban Stormwater Improvement Conceptualisation” (known as the MUSIC model).  MUSIC is the standard industry software for stormwater quality assessments.  It is a computer modelling system, the purpose of which is to design stormwater treatment devices.  The MUSIC model is set up to be site specific and is used to determine pre-development and post-development conditions and form a view based on local climate data, local rainfall, catchments and rainfall run-off.  In the present case, MUSIC was used to determine the total suspended solids (TSS), TP, TN and Gross Pollutants for three modelling scenarios:

(1)    pre-development (being the existing site conditions);

(2)    post-development (untreated) (being the Site, but without any water quality structures); and

(3)    post-development (treated) (being the Site with proposed water quality structures).

243 Section 3.3 of the Stormwater MP records the “Treatment Train Philosophy”.  It records that the stormwater treatment strategy for the site uses a combination of “at-source” and “end-of-life” controls to ensure treatment objectives are satisfied.  This is designed to encourage infiltration through the following methods:

3.3.1    Rainwater Tanks

A rainwater tank will be provided on each future dwelling to capture roof water for reuse.  Captured water should be used for outdoor irrigation, with consideration given to possible toilet flushing and laundry uses.  The following was included in the modelling:

* 3 kL rainwater tank for each of the anticipated lots.

* An annual external reuse rate of 0.411 kL/year/m2 (pervious ground level of lot) was applied and scaled by potential evapotranspiration variations.

* An annual internal reuse rate of 0.220 kL/day/dwelling was applied.

3.3.2    Bioretention Basins

Stormwater runoff from the proposed development shall be directed to the proposed bioretention basins located along the perimeter of the proposed roads with a one-way cross falling towards the basins.  Refer to CivilTech Consulting Engineer’s plan for the location of the bioretention basins proposed within the site.

Proposed bioretention basins will be generally flat. The base will be unlined to allow treated low flows to percolate into the surrounding soils and restore groundwater. As the Road 2 West bioretention basin encountered shallow groundwater, it was designed as a 'lined' system. This was necessary to prevent interception with the filter material and allow for the discharge of treated flows to lower discharge points. Refer to CivilTech Consulting Engineer's plan for the location and type of the proposed bioretention basins.

The biofiltration systems shall generally be designed in accordance with the proposed parameters nominated below and are subject to detailed design:

* Extended detention depth: 0.3m.

* Filter area: See Attachment B for size of individual basin.

* Typical filter depth: 0.40 m.

* Saturated Hydraulic Conductivity: 200 mm/hr.

* Exfiltration rate: 5 mm/hr.

244 The Stormwater MP then recorded the results of the MUSIC modelling.  In relation to NorBE, it recorded that the results “indicate that each stage of the development will not degrade receiving water quality”.  Importantly, Table 5 of the Stormwater MP provided the results of the Stage 1 NorBE Assessment, which is reproduced below:

245 What this table demonstrates is that there are material reductions in TP, TN and TSS.  These reductions are anticipated for each and every stage running through the 21 tables.

246 In relation to groundwater, Table 22 of the Stormwater MP showed the average concentration of TP and TN, and compared the stormwater reaching the groundwater according to the modelling and the concentrations in the groundwater.

247 The parameter references in the table represent the vicinity of each of the roads that are planned for the frog habitat.

248 The table was then accompanied with the following observations, which shows the NorBE results were being met:

3.4.3 MUSIC modelling results (groundwater)

Site groundwater quality sampling has been undertaken at 10 monitoring wells as part of the MA’s groundwater assessment…

The results indicate that the stormwater discharging into the groundwater system will have concentrations lower than the existing conditions.  Therefore, the proposed development will not have any adverse impacts on groundwater quality of the Wallum Froglet habitats.

(Emphasis added.)

249 The respondents contend that it is not realistic to assert that there will be materially increased nutrients that will be damaging to the habitat of any threatened species, given these modelling results.

250 The Stormwater MP also provides for a “Stormwater Quantity Assessment”, the objectives of which are reproduced below:

4.1 Stormwater Quantity Objectives

Stormwater quantity management is to comply with the objectives of Northern Rivers Local Government (NRLG) (2018), Handbook of Stormwater Drainage Design, D5 Stormwater Drainage Design which requires “the peak flow from the proposed development for the 5, 10, 20, 50 and 100 ARI events, for durations from 5 minutes to 3 hours, does not exceed the existing peak from the site”.

Given the sensitive nature of Wallum Froglet habitats, a water quantity assessment has been undertaken to ensure no overflow from the proposed OSD basins to Wallum Froglet habitats for the 15 minute storm duration for any events 5 year ARI or smaller (based on advice from Australian Wetlands Consulting Pty Ltd (AWC), the project ecologist). This is to ensure the most of the runoff from the proposed development is captured by the OSD basins.

(Emphasis added.)

251 The DRAINS modelling methodology was used to determine the overall site flow under existing and developed conditions, as well as overflows from each individual basin upstream of the Wallum Froglet habitats area.  Modelling was undertaken for a range of storm durations between 5 minutes and 3 hours of the following storms:

1 year ARI;

2 year ARI;

5 year ARI;

10 year ARI;

20 year ARI;

50 year ARI; and

100 year ARI.

252 Section 4.2.7 of the Stormwater MP states that, in addition to the proposed bioretention basins, on-lot infiltration drainage, raingardens and street trees have been proposed to increase infiltration throughout the catchment.

253 The Stormwater MP records that the modelling:

…demonstrates that flows would be contained within the proposed bioretention basins and would not overtop into the Wallum Froglet habitats for the 15 minutes storms (or shorter) in the 1, 2 and 5 year ARI events.

254 The Stormwater MP concluded that:

[h]ydraulic modelling has been undertaken to assess OSD design for the proposed development.  Preliminary hydraulic modelling demonstrates compliance with NRLG [(Northern Rivers Local Government (NR ‘Handbook of Stormwater Drainage Design, D5 Stormwater Drainage Design’)] (2018) and impacts to the Wallum Froglet habitats have been minimised.

(Emphasis added.)

6.7    Revised Wallum Froglet Management Plan

6.7.1    Objectives and scope of the Wallum Froglet Management Plan and its application to the WSF

255 AWC prepared the revised Wallum Froglet MP to incorporate the revised treatment of the central drain and clarify matters in relation to the integration of stormwater works and the Wallum Froglet habitat.  The Wallum Froglet MP notes at the outset that, in the summer of 2023-2024, an additional acid frog, the WSF, was detected at the site.  As a result, importantly the Wallum Froglet MP states that, while it refers only to the Wallum Froglet, “prescribed actions are applicable to the Wallum Sedge since they occur in the same Wallum habitat”. The Wallum Froglet MP further explains that finding the WSF on the site “has partially informed the revised layout”, such that the habitat in the west is now retained in-situ.

256 The Wallum Froglet MP sets out the species profiles of both the Wallum Froglet and the WSF.  Relevantly, in relation to the WSF and its habitat requirements, it states that the species is:

Confined to the coastal lowlands and sand islands of southeast Queensland and New South Wales. Occurs from Fraser Island (Queensland), south to Woolgoolga (New South Wales) inhabits coastal ephemeral and semipermanent swamps (pH < 5.5) with sedges, emergent reeds and/or ferns. The species can also be found around freshwater lakes and drainage lines on sandy, low nutrient soils in coastal wallum.

Breeding occurs after rain, in spring, summer and autumn (potentially all year round). Males call from sedges above water. Usually, the Wallum Sedge Frog breeds in ephemeral and semi-permanent swamps with thick emergent vegetation. Water at breeding sites is usually clear, heavily tannin stained and acidic (pH< 6.0) and free of fish species...

257 As to the threats to the WSF, the Wallum Froglet MP lists the following.

Destruction and degradation of wallum habitat for coastal development.

Reduction of water quantity and/or quality (including changes to pH) in coastal wetland habitat.

Changes in average and extreme temperatures and the amount and timing of rainfall due to climate change.

Severe fires in very dry periods that result in insufficient refuge remaining post-fire.

Roadkill (it has been estimated that >10,000 Olongburra Frogs are killed annually on one 4km stretch of road near Lennox Head).

Predation of tadpoles and eggs by the Plague Minnow (Gambusia holbrooki).  While little is known of the extent of Plague Minnow predation on Olongburra Frogs, it must be considered a potential threat.

258 The objectives of the Wallum Froglet MP are stated as follows:

* To retain Wallum Froglet/Wallum Sedge Frog habitat wherever possible within the four proposed management zones

* To enhance acid frog habitat within management zones by a variety of methods

* Provide suitable water quality and hydroperiod conditions for acid frogs.

259 It also states that the refined Development Footprint provides substantial gains with respect to the protection and enhancement of Wallum Froglet habitat at the site including:

* A substantial increase in the retention of habitat within the central drain (Management Zone 3).  In the revised concept the buffer width has increased to 50m+ and the total area of frog habitat in this portion of the site is now approximately three hectares.

* All habitat in the east and west will remain under private covenant at the completion of the development.

* There will be no dual use of drainage channels for stormwater conveyance and acid frog habitat; dual use drainage lines were a point of concern in the previous application and subsequently the stormwater, frog habitat and conveyance channels have been separated.

260 With respect to the location of Wallum Froglet habitat on the Land, the Wallum Froglet MP states that:

The best quality Wallum Froglet habitat occurs in the south-east of the site, where a substantial area (~1 ha) of good quality habitat occurs within a shallow swale and where numerous records occur... Breeding habitat commonly occurs in ephemeral and intermittent shallow water found in informal vehicular accessways and wheel ruts … and within the existing central drain…

261 A photo depicting “good quality Wallum Froglet habitat in the south-east of the site” is reproduced below:

262 A photo depicting the central drain which shows “poor quality habitat” for the Wallum Froglet “due to extensive disturbance” is reproduced below:

263 Section 2.2 sets out the groundwater considerations in relation to WSF habitat.  It records that the habitat requires groundwater expression over a sufficient period to ensure that breeding conditions occur (that is, a minimum 30-100 days).  Groundwater levels were measured across the Site, and the results were provided for in a table, which is reproduced already at paragraph 227 above in relation to the Surface Water and Groundwater MP.

264 In respect to seasonal variability, the Wallum Froglet MP states that:

While rainfall varies annually, it is important to recognise that habitat areas do not require permanent water to perform adequately but provide 30-100 days of surface water ponding for breeding to occur. Guided by groundwater fluctuations over wet and dry periods, the design will ensure that a combination of groundwater and surface water will achieve hydrological requirements where habitat is created or embellished.

6.7.2    Habitat loss and retention

265 In relation to habitat loss and retention, the Wallum Froglet MP records that the Development will result in a loss of 1.3 ha of Wallum Froglet habitat and will retain 2.6 ha of habitat.  It records that a further 1.9 ha of habitat will be created / restored.

266 Section 3.2 of the Wallum Froglet MP titled “Habitat Creation and Improvement” addresses the constructed habitats.  It records that suitable areas adjacent to the three largest areas mapped as WSF habitat will be embellished to create further habitat, as well as linkages to existing habitat. It records that factors critical to the success of the constructed habitat are:

* Proximity to known areas of habitat.

* Approximate excavation levels such that groundwater is intercepted and a ‘window’ for groundwater expression is created at depths corresponding to existing habitat areas.

* Maximum water depth of any breeding habitat areas should be no greater than 0.3 metres.

* Delivery of water to ponds via groundwater to ensure a pH less than 5

* Translocation and/or provision with suitable vegetation

* Suitable measures to ensure [WF] habitat areas are not impacted by trampling or disturbance

* Groundwater dynamics in the post-development scenario are substantially maintained

6.7.3    Habitat Translocation Plan

267 The Wallum Froglet MP sets out the habitat translocation plan, which includes timing, monitoring requirements, KPIs and adaptive management and mitigation measures.  The plan covers from the period prior to the translocation monitoring stage up until five years post completion.

268 Section 5.2 of the Wallum Froglet MP states that the artificial ponds will be designed so as to replicate a hydroperiod suitable for the Wallum Froglet groundwater expression.  It states:

Each pond will have batters surrounding each constructed pond and have a grade of 1:3-1:6. WF breeding ponds and batters will be planted with species representative of WF habitat… Planting and vegetation management should not occur within constructed WF habitat zones until ground works have taken place and ponds have been established.

269 The Wallum Froglet MP further explains that habitat management will be undertaken in three of the four management zones, namely, MZ-2, MZ-3 and MZ-4.

6.7.4    Creation of the artificial ponds

270 For MZ-2, the Wallum Froglet MP proposes to construct six artificial breeding ponds (although this is to be confirmed during the design phase).

271 For MZ-3, it is proposed that 18 artificial breeding ponds are constructed (again to be confirmed during the design phase).  It is also noted that MZ-3 includes the retention of the primary and lateral drainage line and associated Wallum Froglet habitat.  Two large areas of existing habitat are retained with the remaining land to be created.

272 For MZ-4, there is approximately 2.6 ha of existing retained habitat proposed.  The Wallum Froglet MP records that this existing habitat is a “high quality habitat with many depressions and suitable flora species present”.

6.7.5    Habitat protection

273 The Wallum Froglet MP requires all retained habitat to be “clearly fenced and signposted” to exclude machinery and personnel.  This fencing is to be in place until completion.

6.7.6    Occupation stage – Management Actions

274 The Wallum Froglet MP records that signage will be installed at strategic locations to provide information to residents about the Wallum Froglet and the need to retain the integrity of habitat areas.

275 The Wallum Froglet MP recognises the criticality of ensuring waters remain oligotrophic.  It states:

As acid frogs breed in oligotrophic waters, increased nutrients from urban run-off may adversely affect habitat by reduction of water quality and the creation of conditions conducive to weed establishment. Toxicants such as oils and surfactants may also negatively affect wetland areas in which acid frogs occur where they accumulate following urban runoff.

Changes in hydrology may occur through changes in water quality (i.e., water chemistry), water drainage and hydroperiod (water persistence). Changes in water chemistry make conditions unsuitable for acid frog species (e.g., from elevated pH levels), while diversion of drainage lines or alteration to groundwater ecology may have significant effects on the suitability of habitat areas in the long term.

276 It also records that 12 months of groundwater monitoring will be undertaken post-construction.

277 The Wallum Froglet MP recognises certain species that may be a threat to the Wallum Froglet.  It provides a number of action items in relation to those threats.  For instance, in relation to cane toads, it records that dense fringing plantings of species of sedges, rushes and grasses around created habitats will be installed to limit access to cane toads and reduce breeding opportunities.  Further, in relation to the mosquito fish, seasonal drying within constructed drains and the breeding ponds will control mosquito fish, and monitoring of this species will be ongoing.  In relation to weeds, it states that “appropriate control methods will be implemented as required”.

278 In respect of long-term management, the Wallum Froglet MP states:

As Council and private land owners will ultimately be responsible for the management of Wallum Froglet habitat areas there is a need to develop Key Performance Indicators (KPI) prior to the handover of habitat areas. These are prescribed in Section 6.4.  A key requirement is to ensure appropriate vegetation is maintained such that frog habitat is not lost via regeneration of incompatible species.

6.7.7    Monitoring and Reporting

279 The Wallum Froglet MP provides a suite of obligations in relation to the monitoring of the constructed and retained habitat areas.  The purpose of the monitoring is set out in the Wallum Froglet MP as being to:

* Document the persistence of Wallum Froglets within retained areas of known habitat

* Determine whether areas of regenerated Wallum Froglet habitat are being utilised by the species

* Determine whether Wallum Froglets are utilising areas of created compensatory habitat

* Determine the presence/influence of Cane Toads

* Determine that suitable pH, temperature dissolved oxygen, turbidity, salinity (conductivity) and nutrients occur within all areas of Wallum Froglet habitat

* Record fluctuations in water depth and quality of groundwater in addition to surface water to assess potential impacts of urban development on the local hydrological regime

* Document persistence of habitat present within compensatory habitat areas, including the presence of any weed species

* Document the persistence of Mosquito Fish and the impact they are having on the Wallum Froglet population and habitat.

280 The monitoring requirements for every phase, including the post construction/occupation phase, are outlined in Table 6.1 of the management plan as follows:

281 As is apparent from Table 6.1, monitoring under the Wallum Froglet MP is to be conducted by relevant experts over several breeding seasons post-completion and will be performed for five consecutive years after completion of the final project stage.

282 While noting that management of frog habitat zones in MZ-3A and MZ-3B will become the Council’s responsibility after initial restoration and monitoring works by the developer, the performance criteria in the Wallum Froglet MP provides:

Recommended performance criteria for the monitoring program are summarised in Table 6.3 and may be adapted for pre-construction, construction and occupation periods of the development.  Monitoring will be conducted over several breeding seasons after completion of the urban development to detect potential impacts of the completed urban stormwater design at full capacity on surface and groundwater hydrology and water quality.  Monitoring will be performed for five consecutive years after completion of the final project stage to ensure that such potential impacts have been assessed adequately.

Performance criteria must consider prevailing climatic conditions which may adversely affect created habitat and Wallum Froglet populations.  There is a strong possibility that no individuals will be detected during low rainfall periods.  A trigger Response Plan in the event that performance criteria’s are not met for retained and constructed habitat areas is provided in Appendix D.

283 Table 6.3 of the Wallum Froglet MP (reproduced below) summarises the performance criteria against which monitoring results are to be measured in order to assess whether they have achieved the desired objectives:

284 Finally, Appendix D to the Wallum Froglet MP sets out responses where a threshold event, such as a change in water chemistry, triggers a concern about meeting a particular performance criterion with respect to retained and constructed habitat.  For example, with respect to WSF and Wallum Froglet populations, water quality, hydrology and weed control in constructed Wallum Froglet and WSF habitat, the table in Appendix D provides:  

285 Equally, there is a requirement for appropriate control measures to be taken to ensure that threshold numbers of cane toads and mosquito fish remain low, with respect to deterring public access, ensuring “no-go” areas are maintained, that Wallum Froglet habitat is protected, and for weed control.

7.    EVIDENCE

7.1    Principles:  Expert Evidence

286 The starting point is s 76(1) of the Evidence Act.  Section 76(1) provides that “[e]vidence of an opinion is not admissible to prove the existence of a fact about the existence of which the opinion was expressed” (the opinion rule).  Section 79(1) creates an exception to the opinion rule, providing that:

If a person has specialised knowledge based on the person’s training, study or experience, the opinion rule does not apply to evidence of an opinion of that person that is wholly or substantially based on that knowledge.

287 Thus, as the High Court explained in Dasreef Pty Ltd v Hawchar [2011] HCA 21; 243 CLR 588 at [32] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ):

To be admissible under s 79(1) the evidence that is tendered must satisfy two criteria. The first is that the witness who gives the evidence “has specialised knowledge based on the person's training, study or experience”; the second is that the opinion expressed in evidence by the witness “is wholly or substantially based on that knowledge”.

288 First, the expert opinion rule directs attention to the basis upon which the tendering party contends that the evidence is relevant, that is, the finding that the party seeks the Court to make.  Thus, in considering the operation of s 79(1), the High Court in Dasreef held at [31] that it is “…necessary to identify why the evidence is relevant:  why it is ‘evidence that, if it were accepted, could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceedings.’”

289 Secondly, as Gleeson CJ pointed out in HG v The Queen [1999] HCA 2; 197 CLR 414 at [39], in a passage approved in Dasreef at [36], “…by directing attention to whether an opinion is wholly or substantially based on specialised knowledge based on training, study or experience, [s 79] requires that the opinion is presented in a form which makes it possible to answer that question”.  Thus, as their Honours in Dasreef later explained in their joint reasons at [41], “[t]he point which is now made is a point about connecting the opinion expressed by a witness with the witness’ specialised knowledge based on training, study or experience.”

290 Thirdly, their Honours in Dasreef held that a failure to demonstrate that an opinion expressed by a witness is based on the witness’ specialised knowledge based on training, study or experience “…is a matter that goes to the admissibility of the evidence, not its weight.” (Dasreef at [42]; see also Honeysett v The Queen [2014] HCA 29; (2014) 88 ALJR 786 at [44]-[46] (the Court).

291 Fourthly – and of particular relevance to the applicant’s expert, Mr Milledge, and the respondents’ expert, Mr Robertson – an expert witness is expected to provide independent assistance to the Court by the provision of an objective, unbiased opinion in relation to matters within their expertise:  eg Ananda Marg Pracaraka Samgha Ltd v Tomar (No 4) [2012] FCA 385; 291 ALR 292 at [31] (Dodds-Streeton J).  Thus, in Makita (Aust) Pty Ltd v Sprowles [2001] NSWCA 305; 52 NSWLR 705 at [79], Heydon JA agreed with Cresswell J in the Ikarian Reefer case (National Justice Compania Naviera SA v Prudential Assurance Co Ltd [1993] 2 Lloyd’s Rp 68 at 81-2) that, among the duties of an expert witness:

An expert witness should provide independent assistance to the Court by way of objective unbiased opinion in relation to matters within his expertise… An expert witness in the High Court should never assume the role of an advocate.

(Approved also eg in Wood v R [2012] NSWCCA 21; 84 NSWLR 581 at [719].)

292 This obligation is embodied in the Expert Evidence Practice Note (GPN-EXPT) which must be given to an expert witness under r 23.12 of the Federal Court Rules 2011 (Cth) (FCR) and para 3.3 of the Practice Note.

293 Thus, the purpose of the Practice Note is for the Court to receive the benefit of “the objective and impartial assessment of an issue from a witness with specialised knowledge” (para 2.2) (emphasis added).  Furthermore, para 3.1 provides that “[p]arties and their legal representatives should never view an expert witness retained (or partly retained) by them as that party's advocate or ‘hired gun’”, while para 4.1 explains that:

The role of the expert witness is to provide relevant and impartial evidence in his or her area of expertise.  An expert should never mislead the Court or become an advocate for the cause of the party that has retained the expert.

(Emphasis added.)

294 Fifthly, while non-compliance with the Practice Note and the duty of the expert to be independent and impartial does not of itself render the expert’s evidence inadmissible, it is relevant to an assessment of the weight to be given to the expert’s opinion evidence:  SmithKline Beecham (Australia) Pty Ltd v Chipman (2003) 131 FCR 500; see also Save Wallum (No 4) and the authorities referred to therein.  Thus, for example, in Wood, the Court of Criminal Appeal held that the conduct of an expert witness in acting as an investigator during proceedings – seeking to prove that the defendant had committed murder – and publishing a book about his role in the trial, meant that his evidence would have been assessed by the jury to be of little, if any, evidentiary value on any controversial issue:  Wood at [717] and [728]-[758] (McLellan CJ at CL (Latham and Rothman JJ agreeing at [810] and [820] respectively)).

295 Finally, r 23.13 of the FCR requires relevantly the expert report to contain an acknowledgement at the beginning of the report that the expert has “read, understood and complied with the Practice Note”.  It also requires the expert in their report to:

(c)    contain particulars of the training, study or experience by which the expert has acquired specialised knowledge; and

(d)    identify the questions that the expert was asked to address; and

(e)    set out separately each of the factual findings or assumptions on which the expert’s opinion is based; and

(f)    set out separately from the factual findings or assumptions each of the expert’s opinions; and

(g)    set out the reasons for each of the expert’s opinions; and

(ga)    contain an acknowledgement that the expert’s opinions are based wholly or substantially on the specialised knowledge mentioned in paragraph (c); and

(h)    comply with the Practice Note.

296 Finally, the Harmonised Expert Witness Code of Conduct (contained within Annexure A of the Practice Note) requires every report of an expert witness to include similar matters, as well as any qualifications on an opinion expressed in the report without which the report is or may be incomplete or inaccurate, and a declaration that:

the expert has made all the inquiries which the expert believes are desirable and appropriate (save for any matters identified explicitly in the report), and that no matters of significance which the expert regards as relevant have, to the knowledge of the expert, been withheld from the Court;

7.2    Detections of the relevant listed threatened species

297 The applicant tendered a large number of affidavits deposing as to detections of the relevant listed threatened species on the Land. Only two of the applicant’s witnesses were required for cross-examination. Ms Luciana Bowen is the president of the applicant and was cross-examined in relation to her association with A/Prof Wardell-Johnson.  Mr Maciej Maderski was cross-examined in relation to the correctness of GPS location data in relation to detections of the threatened species made by him.

298 The locations of the detections (with GPS data corrections) were mapped in an expert report of a registered surveyor, Mr Anthony Denny, who was retained by the respondents.

7.3    Expert evidence: overview

299 The expert evidence is voluminous.

300 A number of experts were called who gave evidence on more than one species or topic.  These are conveniently summarised in the table below:

Legend:  

1.    Green = expert called by the applicant

2.    Orange = expert called by the respondents

301 In addition, the respondents called Mr Anthony Denny (of NDC) who gave expert surveying evidence.

302 The expert reports relied upon by the parties are set out below:

303 In addition, joint reports were prepared in conclave.  However, aside from the joint report with respect to the SEGB Cockatoo, these were at times of limited assistance given their discursive nature and the fact, for example, that there were disagreements between the parties appearing under the heading of agreement.  The joint reports were as follows:

(1)    Joint Expert Report on Groundwater, Hydrology & Water Quality dated 26 September 2024, prepared by Dr Hedjripour and Dr Cresswell (the applicant’s experts) Ms Erin Holton and Dr Neil Sutherland (the respondents’ experts) (Hydrology Joint Report);

(2)    Joint Expert Report on the Koala, prepared by A/Prof Wardell-Johnson and David Milledge (the applicant’s experts), and Karl Robertson (the respondents’ expert) (Koala Joint Report);

(3)    Joint Expert Report on the Long-Nosed Potoroo dated 24 September 2024, prepared by A/Prof Wardell-Johnson and Mr Milledge (the applicant’s experts), and Mr Robertson (the respondents’ expert) (Potoroo Joint Report);

(4)    Joint Expert Report on the Wallum Sedge Frog dated 24 September 2024, prepared by A/Prof Wardell-Johnson (the applicant’s expert), as well as Mr Robertson and James Warren (the respondents’ experts) (WSF Joint Report);

(5)    Joint Expert Report on the Mitchell’s Rainforest Snail dated 23 September 2024, prepared by A/Prof Wardell-Johnson and Associate Professor David Newell (A/Prof Newell) (the applicant’s experts), as well as Mr Robertson and Dr John Stanisic (the respondents’ experts) (MRS Joint Report);

(6)    Joint Expert Report on the South-eastern Glossy-black Cockatoo, prepared by A/Prof Wardell-Johnson (the applicant’s expert) and Mr Robertson and Dr Stephen Debus (the respondents’ experts) (SEGB Joint Report);

(7)    Joint Expert Report on the Mitchell’s Rainforest Snail dated 4 November 2024, prepared by A/Prof Wardell-Johnson and A/Prof Newell (the applicant’s experts), as well as Mr Robertson and Dr Stanisic (the respondents’ experts) (Supplementary MRS Joint Report); and

(8)    Joint Expert Report on the South-eastern Glossy-black Cockatoo dated 12 May 2025, prepared by A/Prof Wardell-Johnson (the applicant’s expert) and Mr Robertson and Dr Debus (the respondents’ experts) (Supplementary SEGB Joint Report).

7.4    General challenges to the weight to be given to particular expert witnesses

304 There was a significant issue between the parties as to the weight generally to be given to the expert evidence of A/Prof Wardell-Johnson and to that of Mr Robertson.  As A/Prof Wardell-Johnson and Mr Robertson gave evidence on each of the relevant listed threatened species, it is convenient to deal with this general question of weight upfront.  I also note that the weight to be given to the expert evidence of Mr Milledge was also challenged on the basis that he was neither independent nor impartial and had failed to comply with the Expert Evidence Practice Note.  However, that submission is more conveniently considered later in these reasons in the context of considering the applicant’s case with respect to the LN Potoroo and the Koala, being the species with which his evidence was particularly concerned.

7.4.1    Associate Professor Wardell-Johnson

305 The applicant engaged Associate Professor Grant Wardell-Johnson.  A/Prof Wardell-Johnson is an Adjunct Associate Professor in the School of Molecular and Life Sciences and Centre for Mine Site Restoration at Curtin University.

306 A/Prof Wardell-Johnson is an experienced ecologist who worked as a full time academic from 1996 until his retirement in 2018.  Prior to taking a full-time academic role, he worked from 1979 for 18 years as a Divisional Forestry Officer and Senior Research Scientist for the Western Australian Forests Department and Department of Conservation and Land Management, including biological survey.

307 He described his experience and expertise as follows:

5.     My qualifications as an expert to prepare the report include, but are not limited to, the following;

a)     BSc (Forestry) ANU 1979; MSc (Forestry in relation to land management), Oxford 1985; PhD (Botany UWA) 1998.

b)     Over 200 peer reviewed journal, book, and conference publications, including 120 listed on SCOPUS (Elsevier’s abstract and citation database launched in 2004), most of which are forest, fauna, flora, fire and/or disturbance orientated. These are based on data from south-western, south-eastern and north-eastern Australia, particularly in eucalypt forests. Australian and global reviews are included in this portfolio.

c)     18 years employment first as a Divisional Forestry Officer (ADFO, DFO) and Senior Research Scientist in the south-west forests of Western Australia in the Western Australian Forests Department and Department of Conservation and Land Management (1979-1996). This included two years in operations (harvesting including road construction, fire control, bauxite liaison, minor forest products, restoration – 1979-1981) and 16 years researching the impact of forest operations and climate change on flora and fauna, including biological survey (1981-1996). In my opinion, this experience provides good grounds for knowledge of impacts of clearing on Threatened Ecological Communities, and on climate change impacts on wildlife.

d)     22 years as an academic in four universities (Curtin, Griffith, UQ and UNAM) on two continents (Australia 1998-2018 and Africa 1996-1998) and two Australian states (Queensland and Western Australia) researching and teaching wildlife ecology, botany, disturbance ecology (including fire management and impacts), climate change, restoration ecology, landscape ecology, integrated landscape management, and advanced topics in ecology.

e)     Considerable and wide-ranging experience conducting field-based research on five continents and six Australian states. This has included: fire research in a wide range of environments, regular spotlighting, censusing, and mist-netting surveys in NSW during training as a forester at ANU; Director of Forest Fauna surveys as forest ecologist with the Western Australian Forests Department (including vertebrate trapping, searching, mist netting and bird censusing in dry and wet sclerophyll forests); survey, and spotlighting on projects which I led or co-led in Africa, northern NSW and southern and northern Queensland (eucalypt and rainforest - see CV).

f)     Six years (1990-1996) serving on a state Government ‘Threatened Fauna Advisory Panel’ (Western Australia), and eight years (1984-1992) serving as the State Government (Western Australia) representative on the ‘National Forest Fauna Research Working Group’.

g)     Significant success in attracting national and international, including Australian Research Council (ARC), grants and environmental consultancies resulting in numerous publications on eucalypt forests and disturbance ecology (including fire)..

h)    Publication of research on numerous objectives, all directly associated with climate change and wildlife (i.e., fire research and management , flora, fauna, bird census, impacts of logging and edge effects on bird communities, mature forest dependent species, vulnerable species, disturbance ecology, landscape ecology, wet sclerophyll forest, interacting processes, edge effects, old-growth forest, logging impacts, reviews of wildlife and habitat management, corridors, stream zones, vegetation management, vegetation mapping, and climate change), all in the sclerophyll forests of Australia.

i)     Publication of numerous papers on frogs and aquatic ecosystems, papers on birds and mammals, and several overviews and synthesis papers on the vegetation of Australia, particularly eucalypts (e.g., Wardell-Johnson et al. 1997 see CV), and wet sclerophyll forests (e.g., Wardell-Johnson et al. 2017 see CV).

j)     Publication of numerous reviews collating information from disparate sources to guide management activities (e.g., Wardell-Johnson & Nichols 1991, Wardell- Johnson et al., 2005; 2011; 2015a, b; 2016; 2017; 2018, as per CV) in a range of forest types, especially tall eucalypt forests.

k)     Scholarly recognition has included significant success in attracting and graduating honours, Masters, and PhD students. I have supervised to completion, 23 PhD students, with one in the late stage of their PhD program, and two recently (2022) commenced. I have also assessed (i.e., examined) over 20 PhD theses and numerous honours and master’s projects.

l)     Senior positions in environmental management, including President of the Australian Council of Environmental Deans and Directors (ACEDD), 2016-2018, as well as international ecology leadership experience (e.g., International Union of Forest Research Organisations Division 8, (IUFRO), International Society of Mediterranean Ecology, (ISOMED)).

m)     Continuing engagement in research, including PhD supervision, and close association with the vegetation of south-eastern Australia. This includes living in Merimbula since December 2018, and extensive and continuing travel in Victoria (including Strathbogie Forest), Tasmania, New South Wales, Queensland, and Western Australia throughout this period.

n)     Continuing engagement in research enhanced through current editing and review management for The Australian Journal of Botany, demonstrating both scientific recognition and current knowledge. I have also been Associate Editor for other journals that have published material relevant to these proceedings (e.g., Nature Scientific Reports, Australian Forestry).

o)     Contributions to textbooks on ecology (e.g., Wardell-Johnson & Horwitz 2009, Horwitz & Wardell-Johnson 2009, Wardell-Johnson et al., 2017, as per CV).

p)     Appointment to the Ecology Chamber for Forest Sustainability Certification (FSC) standards development Nov 2022.

q)     Appointment as an Expert Witness to several court cases associated with the interactions of biodiversity, logging, and fire in south-eastern Australia (Queensland, New South Wales, and Victoria) between 2000 and present.

r)     My international reputation as a wildlife ecologist is also evidenced by over 3800 citations in SCOPUS (H index 32, i10 index 80) and over 7420 citations in Google Scholar (H index 43, i10 index 111 as of 20/1/25).

308 The applicant submitted that scientists and generally academics are best equipped to give expert evidence about issues under the EPBC Act and, for this reason, the expert evidence of A/Prof Wardell-Johnson should be preferred to that of other experts whose experience was in field work, such as Mr Robertson.

309 However, while A/Prof Wardell-Johnson was clearly endeavouring to be helpful, nonetheless his evidence was frequently not responsive to the questions posed and was, at times, confusing to follow.  A/Prof Wardell-Johnson was also more of a generalist than the respondents’ witnesses and strayed at times beyond areas within his areas of specialised knowledge.  For example, he proffered conclusory opinions (which I ruled inadmissible) in relation to the effect of hydrological changes on the Land said to result from the Development.

310 Also of concern was the fact that A/Prof Wardell-Johnson adopted a largely theoretical approach to the issues in the case.  The respondents rightly submitted that he has substantial academic experience as a generalist ecologist and is no doubt much respected in his fields.  Moreover, as the applicant submitted, the input of academic scientists and the use of scientific theory can be beneficial.  However, A/Prof Wardell-Johnson does not have the knowledge and experience of particular species as the respondents’ experts.   Thus, A/Prof Wardell-Johnson has not published on the MRS, Koala or SEGB Cockatoo despite giving evidence about these species.  He also (properly) deferred largely to Mr Milledge on the LN Potoroo.

311 Nor does A/Prof Wardell-Johnson have the same level of practical experience in assessing conditions in the field as Mr Robertson.  Thus, A/Prof Wardell-Johnson’s evidence almost invariably remained grounded in theory, as opposed to taking the next step of testing or applying the theory to the particular circumstances of this case.  It tended to focus on alleged theoretical deficiencies in the modelling, surveying and opinions of the respondents’ experts.  However, as the respondents contend, a theory is only as good as the evidence and facts on the ground.  For example, for reasons I later explain, I rejected A/Prof Wardell-Johnson’s evidence about metapopulation theory on the ground that it raised purely speculative outcomes and indeed, if it were accepted, would likely have the consequence that every species population would ipso facto be an important population. His focus on the theoretical also appears to have led him to an unwillingness to accept the future effectiveness of measures in management plans, instead assuming that management plans will fail or are merely hopes or aspirations.

312 A/Prof Wardell-Johnson’s more theoretical approach may stem from the fact that he was an academic for the last 22 years of his career.   That approach is reflected in the “important considerations” of ecological theory which A/Prof Wardell-Johnson considered should be applied to the Development.  Those principles were as follows:

Consideration 1 Ecological background, definitions and values determine understanding and responses to ecological questions from different people;

Consideration 2 People bring unique characteristics to urban environments that cause these environments to be strongly differentiated from other disturbed environments;

Consideration 3 Urban environments provide edge environments that uniquely favour biological invasions;

Consideration 4 Wetland environments have characteristics that make them particularly prone to invasive species (especially in urban environments);

Consideration 5 Threatened species have traits or characteristics that make particularly vulnerable in urban environments;

Consideration 6 Principles, matters of national environmental significance, likelihood and significance of risk are essential tools in assessment of threatened species in the context of urban environments;

Consideration 7 Variation in survey effectiveness (and conclusions drawn from a failure to detect Threatened fauna) demonstrate the particular importance of the Precautionary principle in urban developments.

313 The difficulty, however, as the respondents contend, is that the seven “broad considerations” were not informed by site-specific data and were applied by A/Prof Wardell-Johnson in preference to the MNES Guidelines.

314 Furthermore, with respect to A/Prof Wardell-Johnson’s consideration 7, it was common ground (as earlier held) that, insofar as there is uncertainty on the evidence regarding the impacts of the Development on any of the listed threatened species, the onus of proof which lies at law on the applicant cannot be met by applying the precautionary principle:  Strathbogie (FCA) at [349]; Strathbogie (FCAFC) at [65].  Consideration 7 directly contradicts that position.

315 These difficulties ultimately rendered much of A/Prof Wardell-Johnson’s evidence, with respect, unhelpful to the statutory question which I am required to determine in this case.  They also lead me generally to reject A/Prof Wardell-Johnson’s opinions where they were in conflict with the expert opinion evidence of the other experts.  This approach was appropriate even where A/Prof Wardell-Johnson’s views were corroborated by academic literature, because the academic literature (unless authored by one of the expert witnesses) was subject to a limitation under s 136 of the Evidence Act precluding its use as evidence of fact or expert opinion.

7.4.2    Mr Karl Robertson

316 The respondents’ experts, on the other hand, had extensive in-field experience in the relevant areas of expertise.  This is exemplified by Mr Robertson’s extensive expertise and experience.

317 Mr Robertson is a Principal Consultant and Senior Business Manager at Biodiversity Australia. He is a Biodiversity Assessment Method (BAM) Accredited Assessor for the purposes of the biodiversity offsets scheme established under the BC Act NSW.  In relation to his qualifications to prepare his expert reports in the proceedings, Mr Robertson explained that:

Karl Robertson is and industry professional with over 12 years’ experience. He currently sits as the Principal Consultant and Senior Business Manager at Biodiversity Australia and has been with the company for 9 years. Through his career Karl has undertaken an extremely wide range of complex projects in in many different fields including approvals and permitting, human/wildlife conflict, vertebrate pest control, ecological restoration and aviation wildlife hazard. This depth of experience has allowed him to develop an intricate understanding of ecological processes and legislation which combined with an ability to apply lateral thinking to complex problems has resulted in outstanding project success.

Karl oversees a team of over 30 ecologists. and over 100 industry professional each with their own area of specialisation. His proven ability to lead and promote his colleagues’ strengths, allowing Biodiversity Australia to draw from a highly skilled and capable talent pool which has the capacity to undertake some of the largest and most complex Ecological Assessments in the country. Together with his team, Karl has led hundreds of Ecological Assessments throughout NSW, QLD and the NT ranging from small residential subdivisions through to 300km lineal infrastructure upgrades, mine expansions, renewable energy and large scale re-wilding projects.

In relation to the NSW Biodiversity Assessment Method, Karl is an accredited assessor (BAAS21022) and leads a team of highly skilled BAM assessors which have completed dozens of BDARs and BCARs from Sydney to the QLD border and west through New England and the Northern Tablelands. Karl also holds an active position with the NSW Credit Taskforce and has over 30,000ha of land under assessment for the NSW Biodiversity Offset Scheme. Karl communicates with both the BCD and Credit Taskforce on a weekly basis.

Through his report preparation, Karl has developed a broad understanding of both State and Federal Legislation, having prepared hundreds of Wildlife Hazard Assessments, Biodiversity Assessment Reports, Monitoring and Audit Reports, Seven Part Tests, MSES, EPBC Act MNES, BDAR’s, BCARs & BSSARs as well as the preparation of Reviews of Environmental Factors, Vegetation Management Plans and countless Control Plans for Exotic Flora including the regionally adopted eradication plans for Class 1 noxious weeds in Northern NSW.

Given the depth of experience noted above, Karl Is regularly requested to act as an expert witness within the NSW Land and Environmental Court. His comprehensive experience. combined with intricate knowledge of NSW environmental case law make him a valued contributor in this field.

Karl leads the Biodiversity Australia team guided by his core values of integrity, open-mindedness, resilience, camaraderie, and inclusiveness – particularly with Indigenous Australians. His unrelenting desire for client success makes him a welcomed asset to any major project.

Qualifications, certifications and memberships

* BAM Accredited Assessor (BAAS21022),

* ECA Member,

* Tweed Growth Management and Housing Strategy Committee Member,

* Bachelor of Environmental Science and Management (Southern Cross University), 2011

* National Cleared Defence Pass including escort and after-hours privileges,

* ASIC Pass,

* Chemical users’ certificate,

* Construction Industry Induction OH&S (White card),

* Boat Licence,

* Firearms Licence

Career history

Biodiversity Australia - Principal Consultant and Senior Business Manager

August 2015 – Present

GreenCollar Services - Field Ecologist

November 2014 - August 2015

Cumberland Ecology - Ecologist

May 2014- March 2015

Greenloaning Biostudies - Ecologist

May 2014 - November 2014

Far North Coast Weeds - Noxious Weeds Officer

Jan 2012 - May 2014

318 Mr Robertson was cross-examined in relation to his independence as an expert witness.  He had previously provided a peer review letter to the respondents in relation to the EPBC Due Diligence Report in which he concurred with the assessment that there was no likelihood of significant impact on the WSF, MRS, Koala or SEGB Cockatoo.  Biodiversity Australia was paid $3,080 by the respondents for his advice. The applicant suggested in cross-examination that Mr Robertson had a personal stake in the court finding in favour of the respondents – a proposition with which Mr Robertson disagreed.  At the trial, I refused the applicant’s application to disqualify Mr Robertson from giving evidence and ruled that his past advice to the respondents ultimately went to the weight to be afforded to his evidence.

319 I do not consider that Mr Robertson’s evidence should be discounted on the ground that he lacks independence or impartiality.  Mr Robertson complied with Expert Witness Code of Conduct, and I found his evidence to be clear, well-reasoned, and compelling.  In particular, Mr Robertson’s opinions were grounded in empirical evidence relevant to the particular features and characteristics of the Land, including its climatic conditions and soil nutrient levels.  Contrary to the applicant’s submissions, Mr Robertson is not merely an ecologist specialising in New South Wales planning law.  It is clear that he has a deep, local and extensive experience and expertise in ecology, in particular in the species relevant to this case.  Furthermore, his empirical evidence was contextualised within his comprehensive understanding of the management plans applying to the Development.  This includes the inherently dynamic and adaptive nature of the plans as the Development progresses and real impacts on species, the hydrology of the Land, etc.

320 It is true that at times Mr Robertson appeared defensive in giving his evidence but I consider that this was likely to have been the product of a degree of frustration with the fact that many of the questions put to him were, in his opinion (and also in mine), based on hypothetical scenarios and not grounded in the reality of the Development, the management plans and the Land.

8.    THE HYDROLOGY AND HYDROGEOLOGY OF THE SITE AND ITS SURROUNDING AREAS

8.1    Glossary of terms and concepts

321 A number of technical concepts and terms were used during the hydrology conclave that bear explaining at the outset.

ARI is an acronym that stands for “Average Recurrence Interval.”

Bioavailability is a term used to refer to the nutrients in water that are available to be used by a species living in or around the water for that species’ own benefit. A nutrient is not bioavailable if it cannot be used by a species, such as, for example, because it is attached to a piece of sediment so that it could not be extracted for use.

BGL is an acronym for “below ground level”.   As the name suggests, it is a metric used to assess how far below ground something is present.

Coffee rock is the term attributed to a type of sand that bears the colour of coffee – see further the definition of indurated sands below.

Groundwater is water that is in the ground that ultimately seeps down towards the ocean.

Hydroperiod means the duration surface water is present in WSF habitat.

MUSIC (as earlier explained) is an acronym that stands for “Model for Urban Stormwater Improvement Conceptualisation”.  It is a computer modelling software for stormwater quality assessments to design stormwater treatment devices.

NorBE is an acronym that stands for “Neutral or Beneficial Effect”.

Oligotrophic is a type of environment that is nutrient-poor in that, while there are nutrients present in the water, those nutrients have low bioavailability.

Indurated sands (also known as “coffee rock”) are sands that become cemented with organic products and organic matter that is filtered down through the sand.  When the sand becomes indurated, it almost acts like glue.  Water can then sit on top of this glue-like sand, creating what is called a “perched condition”.

Surface water is water that is on the surface.

TSS means Total Suspended Solids.

TP means Total Phosphorous.

TN means Total Nitrogen.

8.2    Relevance of the expert hydrology and hydrogeology evidence to the issues in the case

322 At a high level, the hydrology and hydrogeology expert evidence is relevant to the question of whether the Development will have a significant impact on the WSF.  This is because the evidence addresses whether the Development would cause changes to the chemical composition of groundwater and surface water on the Site, which in turn impacts the WSF habitat.

323 The key takeaways from the hydrology and hydrogeology evidence can be broadly summarised as follows:

(1)    The WSF needs an oligotrophic environment: the WSF thrives in an oligotrophic environment, that is, in wetlands which are nutrient poor.  A “nutrient poor” environment does not necessarily mean there are low levels of nutrients in the water.  Rather, when one measures the nutrient levels, one is looking at the bioavailability of those nutrients. It is only those nutrients that are bioavailable that species (including plants) feed from.  Thus, water may have elevated levels of TN and TP, but those nutrients may still have low bioavailability.  It is within this type of environment the WSF thrives.  As I set out below, I have found that there is a low risk only of increased nutrient levels as a consequence of the Development.  Indeed, it is more likely, in my view, that nutrient levels will decrease because of the management measures to be undertaken.

(2)    The WSF breeding cycle is reliant on suitable hydroperiods: the WSF breeding cycle occurs during what is called a “hydroperiod”, being the amount of time when there is free water available in a pond for the WSF to breed.  The WSF’s hydroperiod is six to eight weeks.  Equally, however, once the hydroperiod is over, the ponds need to be able to dry out (thus, although the ponds are found in what we call “wetlands”, this does not actually mean the ponds are wet at all times).  The ponds need to dry out because, if they stay wet for too long, they will be inhabited by fish that will then prey on the frogs’ eggs.  Having ponds in an ephemeral environment allows them to go through these wet and dry stages so as to facilitate appropriate hydroperiods for the WSF to breed (and then not have their eggs eaten by predators).  The topic of hydroperiods becomes particularly relevant when addressing the applicant’s contention that the artificial ponds are not fit for purpose.  As I explain below, the artificial bonds have each been placed in slightly different locations.  This results in each pond having different hydroperiods which, as I accept based on the evidence, is in fact a positive outcome for the WSF.

8.3    The applicant’s hydrology experts: Dr Hedjripour and Dr Cresswell

324 The applicant engaged Dr Richard Cresswell and Dr Amir Hedjripour of Eco Logical Australia. Dr Hedjripour gave evidence on surface water issues and Dr Cresswell gave evidence on groundwater issues.

325 Dr Hedjripour is a Senior Principal Hydrologist with over 25 years’ experience.  Dr Hedjripour described his experience as follows:

I am a Senior Principal Hydrologist with over 25 years of Australian and international experience in providing technical leadership and advisory on hydrology and water resources.  I hold a PhD in Civil Engineering (Computational Hydraulics) from the University of Queensland (2018), an MSc in Civil Engineering (Hydraulic Structures) from the University of Tehran (2002), and a BSc in Civil Engineering from Khajeh Nasir Toosi University of Technology (1996).

I am a Fellow and Chartered Member of Engineers Australia, a Registered Professional Engineer of Queensland (RPEQ), and hold international credentials as a Professional Engineer (IntPE) with the Australia-Pacific Economic Cooperation (APEC).

Throughout my career, I have specialised in hydrology and water resources management, with particular expertise in surface water impact assessment, flood hazard mitigation, and water balance modelling.  My experience includes projects involving:

* Watershed hydrology and integrated water resources management

* Surface water impact assessments for urban, mining, and infrastructure projects

* Flood hazard mitigation and consequence category assessments

* Hydraulic modelling for floodplains, dams, and other hydraulic structures

* Hydrological assessments for biodiversity and environmental protection projects

* Development and assessment of stormwater management plans for large-scale developments

I have led and contributed to numerous projects requiring hydrological and hydraulic modelling, including surface water assessments for major mining and infrastructure projects, such as flood protection assessments, stormwater management, and water balance modelling.  Additionally, I have been involved in environmental assessments, focusing on the impact of development on vulnerable species and water ecosystems.

My technical expertise, combined with significant experience in hydrological studies and regulatory frameworks, enables me to provide independent and informed hydrological assessments in complex environmental and engineering cases.

326 Dr Richard Cresswell is a Senior Principal Hydrogeologist with over 40 years’ research and consulting experience.   Dr Cresswell described his experience as follows:

1)    I am a Senior Principal Hydrogeologist at Eco Logical Australia, a Tetra Tech Company, with over 40 years research and consulting experience in multiple matters, with the last 30 years devoted to water issues, in particular groundwater and groundwater dependent ecosystems (GDEs).  I attained a PhD in Geology from the University of Toronto (following a Bachelors’ in Geology from Sheffield University) and I have subsequently developed expertise in groundwater hydrodynamics, hydro-geochemistry and groundwater-dependent ecosystems through research at the Australian National University, Bureau of Rural Sciences , CSIRO and recently with private consulting firms.

2)    I have led significant groundwater impact assessments and technical studies for both private and government clients, including for major infrastructure projects, broad-scale agricultural developments and the coal and coal seam gas industries and have been called upon to provide expert witness and technical advice on water management plans, water resource assessments and water management policy.

8.4    The respondents’ expert witnesses:  Dr Sutherland and Ms Holton

327 The respondents engaged Dr Neil Sutherland and Ms Erin Holton of Gilbert & Sutherland Pty Ltd. Both Dr Sutherland and Ms Holton gave evidence in respect of groundwater and surface water issues.

328 Dr Sutherland described his experience as follows:

I am a Director, Principal Agricultural & Environmental Scientist and Hydrographer with Gilbert & Sutherland Pty Ltd (G&S).  I complete scientific assessments in respect of soils, water, agricultural and environmental matters for statutory authorities, mining companies, land developers, farmers and community groups.

My academic qualifications are as follows:

* BTEC (Higher) Diploma in Agriculture

* Post Graduate Diploma in Land and Water Management

* Master of Science in Environmental Management

* PhD in Landform, Agriculture and Water Resource Assessment

329 Ms Holton described her experience as follows:

I am a Director, Principal Environmental Scientist and Engineer with Gilbert & Sutherland Pty Ltd (G&S).  I complete scientific assessments in respect of stormwater, surface water and groundwater quality, erosion and sediment control and environmental matters for statutory authorities, mining companies, land developers and community groups.

My academic qualifications are as follows:

* Bachelor of Science in Environmental Science

* Master of Engineering (Environmental)

330 Ms Holton conducted a site inspection of the Land on 28 August 2024.

8.5    Matters of agreement among the hydrology experts

331 In their Hydrology Joint Report, the experts agreed on a number of matters, which I summarise below.

8.5.1    Geological foundation and landform

332 The Site is within a landform described as level to gently undulating Pleistocene beach ridge plains, with occasional Holocene infills, bounded by Simpsons Creek to the east:

333 As to the geographical foundation of the area, the landform is low and has an elevation of between 3.19 and 5.47 mAHD.  There are Pleistocene sand dunes, and the topography is characterised by dunes and swales running parallel to the coastline.  This is important as rainfall soaks into sand easily.

8.5.2    The Site consists of indurated sands

334 The Site consists of indurated sands or “coffee rock” (which, as I explained above, is a name attributed to this type of sand because it is the colour of coffee), which is present in the landform between 1.2 and 8.8 mBGL.

335 Dr Sutherland explained during the trial (with which the other hydrology experts agreed) that indurated sands are sands that become cemented with organic products.  This is filtered down through the sand and washed down in high infiltration rates.  When the sand becomes indurated, it acts almost like a glue where water sits on top. This creates what is termed a “perched condition”.  In the Site, it is known from drilling that this is present in the Land between 1.2 and 8.8 mBGL.

336 Indurated sands can differ from patch to patch.  A patch may be quite moist (because it has that perched condition), while immediately next to it is a patch that can drain deeper and is therefore drier.  This is the effect of this glue-like situation, which reduces the permeability of the sand.

337 The rainfall record for the locale indicates that rainfall almost always exceeds evaporation.  This means that soil water deficits in the soil profile are limited.  This is important in that the root zone in the wetlands is predominantly fed by rainfall, not by groundwater – these are not groundwater dependent ecosystems per se.

8.5.3    The drainage at the Site maintains the ephemeral nature of the ponds

338 The Hydrology Joint Report records that aerial imagery from 1965 shows the land cleared for agricultural purposes.  An agricultural drain, extended to service the urban subdivision north of the site, flows in a southerly direction connecting to a further west to east drain, discharging to Simpsons Creek.  The report states that this is important because, as earlier explained, the Site is not in its natural, undisturbed condition; it has been extensively disturbed and drained.

339 The Site contains several constructed drains.  Those drains maintain groundwater levels lower than under the general landscape and promote the ephemeral nature of the ponds near these features.  There is also Simpsons Creek (to the east in the map reproduced at paragraph 128 above), the tidal nature of which acts as a natural drain and controls the local groundwater levels.

340 In the map reproduced at paragraph 128 above, two blue lines can be seen running down the middle.  The dark blue line represents the existing north – south drain.  The light blue line represents a proposed “realigned” north-south drain.  This drain has not been constructed yet.

8.5.4    Lateral flow of groundwater and stormwater is very restricted on the Site

341 The landform of the Pleistocene dunes creates a rise and fall of the landform in the cross-section and acts as what the experts refer to as a “near-surface hydraulic boundary”.  Dr Sutherland explained during trial that, what this means is that they are almost permanently wet and almost permanently have a groundwater table window.  Thus, the constructed drains and Simpsons Creek act, in groundwater terms, in what is called “near surface hydraulic controls” in that they separate the two areas of the Site by reason of the drain constructed through the middle of the Site.  This, the experts explain, is important in two ways:

First, they restrict lateral groundwater flows and cause localised drawdown under dry conditions.  Dr Sutherland expanded on this during trial, explaining that this is because the drains act as a boundary – they form a barrier in the landfill such that the groundwater is not going to move from one side of the drain to the other.  Rather, they will move towards the direction of the drain.  The drain that runs through the Site is an agricultural drain that was put in for the purpose of depressing the near-surface groundwater table so they could graze the land.  What this means is that the lateral flow of groundwater and stormwater is very restricted on the Site.

Second, they act as localised discharge features during periods of high groundwater levels.

8.5.5    Vertical flows are high, while lateral water flows are slow

342 The experts explain in the Hydrology Joint Report that, within the Hydrologic Soil Groups of NSW classification, the site soils can be described as Category A – Soils having high infiltration rates, even when thoroughly wetted and consisting chiefly of deep, well to excessively-drained sands or gravels. These soils have a high rate of water transmission and have low water run-off potential. This is important as these soils are at the highest end of the infiltration scale.

343 The Hydrology Joint Report also records that the site soils exhibit infiltration rates of >75 mm/hour (as taken by Martens Consulting Engineers), with a measured range of 104 – 796 mm/hour (19.1 m/day).  Again, this is important because these vertical flows are so high.  Conversely, in this low-slope landform, lateral groundwater flows are very slow because the site is almost flat – there is little gradient.  Applying Darcy’s Law, lateral flows range between 0.0001 m/day and 0.0798 m/day.

344 The significance of comparing the vertical and lateral flows was explained by Dr Sutherland during trial.  Dr Sutherland explained that, in the present case, the key constraint to water flows is the sandy soil (that is, the sand dune).  Here, the soils infiltrate massive amounts of rainfall that is much higher than the runoff.  The annual balance shows that seven times more rainfall water is soaking into the Site than runoff water.  This is because the measured range of infiltration is between 104 to 176 ml/hour.  It soaks up water very rapidly and, because it receives all the rainfall, it hardly experiences any erosion.  Further, because the groundwater follows the landfall, where it is quite level (that is, the gradient is relatively flat, and close to a gradient of 0), there is not much lateral flow.  Thus, lateral flows are quite slow.  However, because the foundation is sandy, and it absorbs the water like a sponge, it experiences a lot of vertical flow.

8.5.6    The types of soils on the Site

345 The experts explain (and agree) that, under the Australian Soil Classification, the soils can be described as a combination of Anthroposols, Hydrosols and Podosols.

346 Anthroposols is a soil that has been disturbed by humans (or exhibits signs of disturbance) and changed.  Hydrosols are soils that are saturated for 2 – 3 months/year, while Podosols have been formed by the illuviation (leaching down before deposition) of humus and iron in the soil profile. This is important because the iron and humus can form cemented (or indurated) layers within the soil that slow the drainage, sometimes causing ponds to be formed at the surface.  Podosols are soils formed when organics and detritus on the surface leach down into the soil and form these cemented layers.  Thus, indurated materials fall into this category.

347 Dr Sutherland explained, importantly in my view, that.

…the technical specifications are this and … – we will work with moisture content at the moment but when you’re looking at the soil it’s glistening.  So when [a] sponge is full and it’s glistening at the surface that’s saturated.  When I take that sponge out of the basin that it’s in and it stops draining under gravity but it has still got lots of water in it that sponge is then at filled capacity and that’s … a function of the sponge.

Then if a plant is drawing water from that sponge it will draw that water down to a point called “permanent wilting point” and that’s a function of the plant and different plants have different permanent wilting points.  Now, in these soils, very roughly, you’re looking at … 30 per cent moisture content and the soil profile’s fully saturated.  So in one metre of this soil – this sand you will have 300 millimetres equivalent depth of water but field capacity will sit at around 100 millimetres of water.  So it’s when it’s drained out and stopped draining under gravity and the plant then extracts it by osmotic pressure and then our permanent watering point differs for different plants but may go down to 20 per cent.

Now, to answer your question directly once a soil profile is filled up and the infiltration capacity is exceeded then – so, here, that’s a function of the moisture content.  So once it goes above 30 per cent and everything’s full then you get run off in this soil profile and in this landform that happens very rarely.  As Dr Cresswell said …, it happens very rarely because the soil is so absorbent and you’ve got this vegetation transpiring this water on an ongoing basis.

8.5.7    Sources of acidity

348 The experts explain that, in this landform, where the pH of the waters is 4 – 4.5, soil and water acidity (critical for the WSF (and WF) habitats) is generated in three ways:

(1)    in rainfall, in the form of carbonic acid;

(2)    the infiltration of rainwater through decomposing organic matter that leaches organic acidity into the upper soil profile; and

(3)    to a lesser extent, groundwaters interacting with acidic soil conditions and leaf litter to help reduce the pH of the infiltrating rainwater (which generally has a pH between 5.5 and 6), to less than 5, but greater than might be expected in acid sulphate soils (where pH<3 is common).

8.5.8    Approved management plans

349 The experts explain that design principles and actions have emphasised the need to retain water on-site, induce recharge and maintain low pH levels in groundwaters.  They consider that the design and management principles described in the CEMP (and set out in detail in the Stormwater MP, Dewatering Management Plan, Sediment and Erosion Control Plan, Vegetation MP, Surface Water and Groundwater MP and Wallum Froglet MP) provide comprehensive and appropriate, in-principal safeguards and habitat preservation that favour the WSF (and MRS) and should be strictly followed in the experts’ view.

8.6    Matters of disagreement among the experts

350 The hydrology experts disagree on a number of matters, namely:

Alkalinity of the groundwater: whether there is a low risk of high alkalinity in the groundwater by virtue of the lateral groundwater flows being very slow.

Bioavailability of nutrients in the groundwater: whether the bioavailability of the nutrients in the groundwater is low, making the Site suitable for the WSF, which thrives in an oligotrophic environment.

Presence of the WSF: whether the presence of the WSF can be considered indicative of the Site being a suitable environment for the WSF in circumstances where: (a) the Hydrological Assessment records that data analysis indicates both TN and TP concentrations are indicative of “degraded groundwater quality”; (b) it is contentious as to whether the saturated condition of the Site can be maintained.

Effectiveness of the artificial WSF ponds: whether the artificial ponds will operate as intended in circumstances where the modelling used to design the ponds was based on wetter conditions.

351 I deal with each of these in turn.

8.6.1    Alkalinity of the groundwater

352 In Dr Sutherland’s opinion, slow groundwater flows reduce the risk of alkaline waters associated with the Development.  Thus, when the Development occurs, slow lateral flows reduce the risk of impacting the frog habitat that is either being retained or created.  It is rainfall dominated which is acidic.

353 While Dr Cresswell does not dispute Dr Sutherland’s opinion in relation to the process, Dr Cresswell’s view is that, if something were to occur that induces an alkaline environment, there is insufficient modelling to determine whether the alkaline would be diluted in time.  In other words, Dr Cresswell’s concern relates to future risks associated with the development, that may take three to five years to reach fruition.

354 In Ms Holton’s view, while she accepts that there is a need to be sensitive to the receiving environment, she does not perceive the risks identified by Mr Cresswell to be real.  Ms Holton also opines that the management actions of removing the vectors for pH change will be sufficient to avoid this concern.

355 In Ms Holton’s opinion, one must have regard to the vectors for groundwater quality changes.  The two main ways that an urban development could impact groundwater pH to become more alkaline, in Ms Holton’s view, are, first, the liming of acid sulphate soils.  However, Ms Holston explained that this cannot occur in the present case because the soils on the Site are organic acidity soils and there will be no liming, referring to the ASSMP for the Site. Secondly, groundwater pH can become more alkaline through the presence of concrete stormwater pipes and the like.  However, again, this is not a risk that will occur on the Site as it does not use concrete stormwater pipes.  Rather, the Site is relying on a comprehensive stormwater treatment train.  That train moves water through the landscape as surface water flows travel via the roadways to end-of-line treatment devices, and reintroduces the stormwater flows back into the groundwater beneath the Development.  Thus, in Ms Holton’s opinion there have been management responses to remove the vectors for pH change as a result of which there is a low risk of pH change.  In other words, in Ms Holton’s opinion the management actions of removing the vectors for pH change will be sufficient to avoid this concern.

356 Added to this, the acidity in groundwater is generated by organic matter.  Ms Holton explained that when rainwater – which is low in pH – hits these organic rich soils and percolates through the organic material, it moves slowly in a lateral direction.  In Ms Holton’s view, the long residence time between these waters and the organic content of the soil therefore has the consequence that pH change is unlikely.

357 Ms Holton also observed that the groundwater at the Site to date is acidic.  Thus, despite there having been an urban residential development immediately adjacent to the Land since the late 1980s, concerns around groundwater pH have not materialised.

358 Dr Creswell expressed the view that housing construction will likely use concrete.  This, in Dr Cresswell’s view, may have unintended consequences in that the pouring of concrete will generate highly alkaline slurries that can buffer the underlying groundwaters.  Ms Holton accepted this but observed that the laying of the concrete is surface level (and “certainly not coming into contact with the groundwater table”) and, while you may experience some small volumes of water where pH changes could occur, that risk remains low.

359 Overall Ms Holton’s evidence was carefully reasoned and persuasive.  Her evidence establishes, in my view, that pH changes in the soil are unlikely.

8.6.2    The bioavailability of the nutrients in the groundwater

360 The experts all agreed that the nutrients in the groundwater in the Site are of low bioavailability.  As I explained above, the concept of “bioavailability” is used when referring to nutrients in water that are available to be used by a species (such as, for example, plants) that lives in or around the water and can easily absorb and use that nutrient for its own benefit.   A nutrient is not bioavailable if it cannot be used by a species, such as, for example, because it is attached to a piece of sediment.  This concept of bioavailability becomes highly relevant to assessing the suitability of the environment on the Site for the WSF, which thrives in an oligotrophic environment.  As Ms Holton explained, the nutrients (nitrogen and phosphorous) in the groundwater and surface water at the Site are of low bioavailability.  This low bioavailable proportion of nutrients in the groundwater makes the Site well-suited to an oligotrophic environment.

361 Ms Holton further explained that the development includes a stormwater treatment train that starts from rainwater tanks.  The excess flows that do not get captured in a rainwater tank from a house roof, will infiltrate into an infiltration pit in residents’ back yards; which is on a per lot basis – that is, each housing lot will have this infiltration measure in place.  Further, within the streetscape of the development there are bioretention street tree pots.  Bioretention systems can remove nutrients from water, suspended solids and, to a lesser extent, metals and hydrocarbons.  Onward from there, as the water flows down the streets, there are end-of-line bioretention swales which ring the entire perimeter of the development.  A map setting out the bioretention swale with no underdrain (marked using the green line) is reproduced below.

362 Ms Holton explained that the stormwater treatment train used the MUSIC modelling (explained above).  The treatment train has been shown to meet the Council’s pollutant load reduction requirements.  Those pollutant load reductions speak to nutrients and suspended solids and gross pollutants.  Ms Holton explained that, while they meet those targets, the modelling has gone a step further.  She explained that the stormwater treatment train has been assessed under the NorBE water quality assessment guidelines.  Ms Holton went on to state:

It’s a system of assessing the model to have a look at what are the levels of nutrients being discharged to the receiving environment today under its undeveloped form, and what are they going to be like post development with all of these treatment measures in place.

363 The NorBE assessment, Ms Holton explained, indicates that there will be lower quantities of nutrients discharging into the receiving environment post development than the water quality discharging from the Site today.  That is because these bioretention systems are designed specifically to remove nutrients from the water that they treat.  Ms Holton explained that they are a specifically designed to do some of the heavy work when it comes to nutrient removal, but they are also planted out with plant species that are effective in removing nutrients from the soil particles and the water.

364 Ms Holton explained that the soil has a huge potential to strip nitrogen and phosphorus from the water by virtue of the soil’s following characteristics:

the bacterial and biological content of these soils (all of which are nitrogen and phosphorus users);

there are plants that are busy taking up nutrients from the soil; and

the existing groundwater measured at the site that is adjacent to the existing urban development is not exhibiting concerns of elevated nutrients.  That existing development is sitting there without the stormwater treatment train.  Thus, even without the benefit of all the systems specifically designed for nutrient removal in the Site, the groundwater today continues to be of low bioavailability.  Therefore, in Ms Holton’s view, if further residential development is constructed on the Site accompanied by the stormwater treatment train, the risk of elevated nutrient levels is low.

365 None of the experts expressed disagreement with Ms Holton’s evidence in this regard.  Again, I accept Ms Holton’s clear and well-reasoned conclusions and therefore find that there is a low risk only of increased nutrient levels as a consequence of the Development.  Indeed, it is more likely that nutrient levels will decrease as a consequence of the management measures to be taken.

8.6.3    Presence of WSF indicative of a suitable environment

366 The applicant sought to challenge the suitability of the Site’s environment for the WSF on several bases, all of which were the subject of in-depth discussion by the experts.  Ultimately, I am satisfied that the groundwater is not degraded and remains suitable for the WSF.

8.6.3.1    Degradation of the groundwater

367 The applicant’s senior counsel submits first that, while the WSF is present on the Land at the moment, that is not itself determinative of whether the groundwater is suitable for the WSF.  Ms Holton disagreed with this proposition.  In her opinion, sightings of the WSF in the immediate vicinity of the site in this environment speak to the fact that the nutrient levels in the groundwater are suitable for the WSF species.  Dr Sutherland agreed with Ms Holton and explained that the bioavailable levels are very low.  He further opined that:

The fact that you’ve got this big difference between the bioavailable which is low and the total which is high means that the bacteria can’t extract that.  It’s bound up.  These nutrients are bound up, and they’re likely to be bound up, in my view, in the organic complexes that are causing that indurated sand and that’s something that we see normally in this landform…

368 The applicant’s contention arose in the context of the Hydrogeological Assessment, which I provided an overview of above.  It will be recalled that the Hydrological Assessment made the following observations in relation to the above data:

We note from the data:

1.    Site groundwater is acidic.  Minimum and maximum pH values were 3.6 and 5.0 respectively.

2.    Groundwater had an average electrical conductivity (EC) of 140 μS/cm. Groundwater is therefore generally fresh.

3.    Data analysis indicates both Total Nitrogen (TN) and Total Phosphorus (TP) concentrations are above the trigger values and indicating degraded groundwater quality.

(Emphasis added.)

369 The applicant’s senior counsel challenged the experts on the final point 3 above, putting to them instead that the presence of the WSF does not in fact give any indication as to whether the Development will adversely impact the hydrology for the WSF.

370 Dr Sutherland did not accept that proposition.  He explained that WSF presence is a biological indicator that at least that population of WSF are enjoying the benefit of the water there at the moment. Dr Sutherland also explained that the risk is low in the sand profile because the bacterial response for the utilisation of nutrients is very high.  The fact that this large difference exists between the bioavailability (which is low), and the bacterial response for the utilisation of nutrients (which is high) “means that the bacteria cannot extract that. It’s bound up.  These nutrients are bound up, and they’re likely to be bound up, in my view, in the organic complexes that are causing that indurated sand and that’s something that we see normally in this landform…”.

371 Dr Cresswell agreed that the bioavailable nitrogen and phosphorus will be a lot lower than the TN.  However, Dr Cresswell elaborated that his issue is not with the values per se, but the change in those values, that is, “[i]s the development going cause a change in the condition?”.  Dr Cresswell also expressed his concern as to the impact on the peripheral area of the land, and what management plans are in place to mitigate against these potential impacts, such as the application of fertilisers on people’s lawns.  Ultimately, however, Ms Holton and Dr Sutherland were of the view that these risks are not real.  In this regard, Ms Holton explained that this is where the NorBE and the stormwater treatment train becomes relevant.  The latter has treatment devices both within the Development Footprint and all the way around the perimeter and are specifically designed to strip nutrients.

372 Ms Holton also explained that there is treatment around the periphery.  The monitoring data for the Site has been undertaken both within the Development Footprint and within the adjacent vegetated environments in close proximity to where the sedge frogs have been sited.  In other words, there are water quality results that are representative of what is there today and what is representative of where the WSF have been sighted to date.  Ms Holton went on to explain that this multi-layered approach that has been adopted to mitigate these impacts would be effective if the nutrient levels were to rise in the way indicated by Dr Cresswell.  Ms Holton explained this is due to their biological component (ie, plants):  “The plants in these systems will respond just like a plant in your garden whereby if you apply more fertiliser to a plant in your garden it grows bigger and it takes up more fertiliser”, ie, more nutrients.

373 When asked if there can ever be too many nutrients so as to burn the plant, Dr Sutherland said this would not occur by reason of both the sand filters (being the natural treatment) and the stormwater treatment train.  Dr Cresswell accepted this in general terms.  Dr Cresswell agreed that Ms Holton and Dr Sutherland’s points “are verifiable and useful and true mitigations.”  He also agrees with the overall assessment, on a whole of site basis, that there is a low risk of pH change and a low risk of increased nutrients following the Development – an opinion which I accept.

8.6.3.2    Maintenance of a saturated condition at the Site

374 The WSF (and the Wallum Froglet) requires a hydroperiod of six to eight weeks to allow for the breeding cycle to occur, as Ms Holton explained.  A hydroperiod is the amount of time when there is free water available for breeding.

375 Conversely, the ponds where the WSF breed need to dry out in order to prevent them from being inhabited by fish which would prey on the frogs’ eggs.  It is for this reason that WSF are found in wetlands.   As Ms Holton explained:

we want these ponds to be ephemeral.  You want them to dry out.  … [T]hat’s an important aspect for both of the frog species.  By allowing these ponds to dry out, it prevents the ponds from being inhabited by fish that may prey upon the frog eggs.  And wetlands enjoy periods of wet and dry.  They might be called wetlands, but they actually require times of dry because it relieves the stresses of inundation.

376 Dr Sutherland’s view, which I accept, is that this is a rainfed system.

377 The expert evidence establishes that there are two barriers which could stop rainwater continuing to seep down through the soil causing the Land to become saturated:  (1) rainwater meets the barrier of coffee rock; or (2) the rainwater meets the water table (ie groundwater).  While initially it appeared that there was some disagreement between Dr Cresswell and Dr Sutherland as to whether the barrier was coffee rock or the water table, ultimately I understood that disagreement to be resolved by their acceptance that the two features interact.

378 Dr Cresswell considered that one must look at the groundwater activity.  If coffee rock acts as a barrier, then, in Dr Cresswell’s opinion, the groundwater system should either be deeper than the coffee rock or responding in a muted way.  However, in Dr Cresswell’s view, when the hydrographs are considered, they show that the bores on the outside are rising above the surface and then going back down, while the bores near the drain do not rise above the surface.  This, in Dr Cresswell’s opinion, demonstrates that there is a bore table. Dr Cresswell concluded, based on monitoring from the use of a steady state model which shows a response on the order of weeks:

…[I]t’s not groundwater dependent per se … I still believe it’s groundwater dependent, ipso facto.  So these systems, they respond to rainfall, but it’s the groundwater responding to rainfall, pushing groundwater up high enough to stop the rainfall infiltrating through and disappearing.  So the ground floor is acting as that buffer to help maintain the system.

379 Dr Sutherland agreed, with a “small” exception. He explained that saturation varies through rainfall, water table rise, capillary action, and the time of the year.  For example, while in summer, there is “massive evapotranspiration”, during the winter “plants don’t perform in the same way.  It’s – it’s more dampened, and its quieter in terms of the evapotranspirative demand.  But what we can say is that above the water table here, we’ve got these interactions going on.”  He further explained that “it’s really important … and may knock over a lot of the points of disagreement.  These lenses of coffee rock may make this performance change.  And as you say, Dr Cresswell, mute the effect of the capillary rise and the … rising water table.”

380 It was also apparent from the expert evidence that how close the surface of the land is to the water table varies across the Land.

381 These variants inform, in Dr Sutherland’s opinion, the different performance of the 36 constructed and maintained artificial ponds and explain why the ponds have been set up in different parts of the landform.  As he elaborated:

this hopefully goes to Dr Hedjripour’s – our areas of disagreement, which we may be able to knock over, as well.  These have been set deliberately in different parts of the landform and will perform differently in terms of the relationship of the water reporting close to the surface, the capillary rise, and where they’re sitting relative to channels currently. So … the designers have deliberately taken a broad range of these levels and types of structure.  So it maximises the chances of successful habitat creation.  That’s the basis of there being so many in different parts of the land form, proximal or not, to perched water conditions, proximal or not to this groundwater rising to the surface, being groundwater fed or not. … if we take the climate file in terms of the water balance and this gives us confidence …

…

… why we’ve got confidence that this is going to work, and we say it’s a rain-fed system, we take the climate file from MUSIC, which gives us a basic water balance and the climate file that Martens used – I wrote the figures out.  So 19.7 over a hectare basis, just in that climate file.  And you understand that the – so that the rainfall in is 19.7 megalitres.

382 Dr Sutherland explained that the fact that the total rainfall is 19.7 megalitres is pertinent to Dr Cresswell’s disagreement with him, because Dr Sutherland says that there is such little runoff as a proportion because of how high the infiltration rates are.  Dr Sutherland went on to explain his opinion with respect to the artificial and maintained ponds for the WSF:

[T]he created habitats and the maintained habitats – are going to perform adequately because they don’t rely on surface runoff, they principally rely on either groundwater reporting to the surface … but also massive input from rainfall as well.

383 Dr Hedjripour, however, considered that there is a live question as to how the habitat will look in different conditions, that is, how would the habitat look if there was ongoing flooding or if there is a dry period.  He expressed disagreement with Dr Sutherland’s view as to the likelihood that the artificial ponds would succeed on the basis that he had not seen any type of modelling that demonstrates these habitats are effective in different climatic conditions when interacting with groundwater.

384 I accept Dr Sutherland’s evidence, however, that this factor is of a lesser concern in circumstances where the Land is in a rainfall-dominated system (ie where rainfall generally exceeds evapotranspiration).  As Dr Sutherland explained, if the Land was inland and there was a large rainfall deficit, then Dr Hedjripour’s concern would be appropriate.  However, he explained that the Land’s proximity to the coastline in the present case negates any concerns of that nature.  Dr Sutherland stated that the stormwater treatment train uses the ARI 5-year 15-minute rainfall event, equating to 30mL on the Site.  It is that 30mL retention, as compared to the 104 mL per hour and 729 mL per hour infiltration rate that, in Dr Sutherland’s opinion, gives confidence that it will not be an issue.

385 While Dr Hedjripour accepted that Dr Sutherland “is absolutely correct on an average value”, he maintained his disagreement in circumstances where the rainfall-dominant climatic condition may change in different years. Dr Hedjripour also opined that:

… for this project – because we have some infiltration enhancement devices that just – we mentioned about them and that first flush detention basin that captures the first 15 minutes of rainfall run-off, actually, that’s – I’m not sure how that would – that might adversely impact those wetlands or those areas that would have filled up with that tiny amount of rainfall.

…

Yes, that – that’s, again, something that we might – we might need to see through modelling to see exactly – for a range of – it’s a very – in Australia – that we have Australian rainfall and run-off guidelines which is, like, vital for everyone in Australia doing this kind of modelling. It’s very prescriptive. It says you have to test the number of different storm durations. Number of different temporal patterns for rainfall, like, how rainfall is distributed over the storm duration. So it’s an extensive modelling that has to be done and it’s very well-established. I – I would be surprised if, for a sensitive project like this, we bypass that or say it’s not required but maybe do it for other – for any infrastructure or any other projects.

386 Dr Cresswell clarified that in his view the concern is not so much the extreme weather events, but the variability, posing the question “how long are we away from that mean [ie average] in any direction … [and] how long can we ignore that before it becomes a critical ecological condition?”  Dr Cresswell went on to clarify that, given that “modelling is very prone to tipping points”, in his view “it would be nice to have a transient model that is designed to see, when you drop 200mill, does the transient picture change?”  Dr Cresswell asserted that that there is “a significant change not far from the area of habitat” due to the close proximity to Simpsons Creek.

387 The difference between a steady state model and a transient model is that a transient model looks at the temporal flows of the groundwater (ie over time), whereas the steady state looks at snapshots.  Dr Sutherland’s view is to keep this modelling as simple as possible:

DR SUTHERLAND: …. what the modellers have done using a steady-state model is to fine their model, effectively, calibrating it with 13 bores worth of measurements over something like 10 years …. But logged by automatic loggers, I think, at a 15-minute intervals.  So a massive amount of data, and what they’ve done is … they’ve adjusted their steady-state model to us that that’s adequate rather than making this too complex.

388 Similarly, Ms Holton gave evidence that:

MS HOLTON: So the original objective, again, with the groundwater model was for the purpose of assessing development impact.  Now, the groundwater model is a steady-state model; it is a simpler form of model, and it has been designed to assess what are the groundwater conditions at the site today, what’s the base case, how will the development change those groundwater levels, and then what can we do about it.

And for this particular site, again, the design relies on a fairly standard approach that’s taken in residential development whereby infiltration devices have been designed to be in place throughout the site, such that … when we develop a site and we create hard stand throughout the development footprint in the form of roads and roofs, the effect is that when it rains, there can be less infiltration of that rainfall into the groundwater. To overcome that, we use infiltration devices throughout the development footprint to convert what would otherwise become run-off back into groundwater infiltration, thereby replenishing the groundwater table.

389 Ms Holton went on to explain that the steady state model has also been used to look at the design of the created wallum frog habitats:

MS HOLTON:  … The model demonstrates that we’ve got this array of ponds across the site, and they all have different dimensions and different depths, and the modelling demonstrates that a number of those ponds will intersect the groundwater table under average conditions.

Now, it follows that under higher rainfall conditions, we end up with a higher groundwater table, which will increase the level in those ponds and increase the interaction between those ponds. In a lower rainfall condition, the same is true: we have lower groundwater tables and less interaction of those habitats with the groundwater table. But essential to consider here is that we want these ponds to be ephemeral.  You want them to dry out. …

So I say that we can be confident in the level of modelling that has been undertaken for the site because it demonstrates that in the average condition, we will have suitable habitats there for the frog species that we’re interested in here, and it shows the usefulness of the infiltration devices in mitigating development impact. We’re always going to have drought. We are always going to have flood. Those are not development impacts, and those will impact the receiving environment just as they do today.

390 The applicant’s evidence challenging the use of the steady state model is, respectfully, unhelpful.  Ultimately, the evidence goes no higher than to suggest that a different or additional modelling method might be helpful to test the regime for the artificial ponds at the extremes, rather than by reference to averages.  However, my task is not to decide what is the best modelling to use.  Furthermore, as Ms Holton says, extreme events are not development impacts; rather they are events that will impact the Land irrespective of the Development.

391 Further, even accepting that there may be changed climatic conditions, the evidence does not go so high as to suggest that the conditions for WSF would be preferable in an extreme weather event if the development were not to proceed with the additional artificial ponds and regime for maintaining existing ponds.  It does not in other words, address the fundamental issue for the Court in a meaningful way, namely, whether this development is likely (in the statutory sense) to have a significant adverse impact on the WSF.

392 Ultimately, this is another example of the applicant seeking impermissibly to reverse the onus of proof.  Effectively, the applicant is asking the Court to find, based on purported gaps in the respondents’ defence, that there will be a significant adverse impact on the WSF.  But there are logical steps missing from that chain of reasoning.  Why, for example, might the implementation of the regime for monitoring and maintaining 36 artificial ponds and the existing ponds likely lead to a worse outcome for the WSF in the event of an extreme weather event of the kind postulated by the applicant’s experts?  If, in the applicant’s counterfactual world, the development were not to proceed, how can I be satisfied that an extreme weather event would have a better outcome for the WSF, particularly in circumstances where neither Dr Cresswell nor Dr Hedjripour sought to undertake any kind of comparison which might assist the Court in assessing whether the steady state model is, as they contend, inadequate to accommodate a possible increasing frequency in extreme weather events?

393 Ultimately, therefore, I accept Dr Sutherland’s evidence that:

The wetlands are nature’s sinks in this landform.  We’re at the lowest part, and this landform, by [being] very level, is going to dry out the last.  That’s – that’s the principle.  And by creating a variety of habitats, as has been done here, relative to the coffee rock, relative to the evapotranspirative demand, relative to the levels on the site, we’ve got a … very good opportunity of having a variety of habitat that will dry out last in the landform, but also give adequate drying times or hydro periods that these … particular species need. … the sandy nature of the landform and the levls int eh landform together with the proximity of the coffee rock and the groundwater table make for the correct condition.  The design specifications that have been given, we think are adequate and will be successful because of the variety in the habitat that has been created at different levels, abut also … the separation from the stormwater treatment tray.

(Emphasis added.)

8.6.4    Will the artificial frog ponds operate as intended?

394 As Ms Holton and Dr Hedjripour noted, the WSF management plan and Stormwater MP explain the purpose of the artificial ponds and the basis on which they were designed and located.  As Ms Holton also explained, the management plans are adaptive and have a 5-year maintenance period.

395 There were a number of issues, however, raised by the applicant’s experts, Dr Cresswell and Dr Hedjripour, with respect to the question of whether the artificial frog ponds will operate in the manner intended.

396 First, Dr Cresswell expressed concern that there was only a short record of observations conducted during relatively wetter conditions despite the fact that, in his view, it is critical to see whether the ponds behave as expected in dry conditions.  In these circumstances, Dr Cresswell was of the opinion that there should be appropriate modelling for an extended period of time so as to assess adequately the performance of the ponds in drier conditions, having regard to a range of potential scenarios.  In his opinion:

To do that, in a climate sense and, as you project further forward, you need to go to these global weather climate models, and they predict for anywhere in the globe, potential changes in the weather, notwithstanding the fact that we can hardly ever predict whether it’s going to rain this morning.  But they will give you an indication, and again – so that area will get bigger and bigger as you go forward, but will still continue to give you a bounds of conditions.  And so then, when you’re looking at mitigation strategies to make sure that you’re trying to protect a certain species, you don’t want what you’re doing to compound what the climate might be doing as well.

397 Dr Cresswell was therefore of the opinion that there were still many questions not asked of the model relied on by the respondents’ experts, and that it is not a model that can answer those questions.

398 Dr Sutherland agreed with Dr Cresswell that general climate modelling indicates that the climate will become more wet.  However, he considered that the modelling used for the artificial ponds fairly represents what is happening on the Site.  He emphasised in this regard that increasing the storage of water within a site increases the resilience of the ponds to change.  In Dr Sutherland’s view, the 36 ponds that have been created or enhanced under this development will lead to improved climate resilience in a landform that is “pretty much the most resilient landform that we have”, being the lowest point in the landform before the landscape transitions to saline or brackish conditions.  I accept Dr Sutherland’s analysis and reasoned explanation.  Further and importantly, as Ms Holton explained, the model is intended to predict the changes that the Development will bring about to this landscape, as opposed to seeking generally to protect the species against the potential effects of climate change on which Dr Cresswell was focused.  The latter, as Ms Holton correctly pointed out, “are beyond our ability to control”.

399 In short, the evidence of Mr Cresswell was focused upon criticisms of the modelling used by the respondents’ experts in circumstances where conditions may change due to climate change.  However, that is not the question which I must address.  Bearing in mind that my focus must ultimately be upon the impact of the Development on the species, the question is whether the Development will have a significant impact on the WSF and not on what is the best mitigation strategy per se to protect against climate change.  In this regard, despite Dr Creswell’s criticisms of the modelling engaged in by the respondents’ experts, there is no modelling in evidence undertaken by the applicant’s experts which suggests that not progressing with the Development would result in a better outcome for the WSF in terms of resilience to climate change; indeed the evidence of Dr Sutherland speaks to the contrary.

400 Secondly, I accept Dr Sutherland’s opinion that, having regard to the geomorphology of the Site, it is the interaction of surface water and groundwater that is more important than surface water controls in the design of the artificial ponds.  As Dr Sutherland explained:

…when you go onto this site and … look at the geomorphology of this site, and you can see the water table windows in the drains, you understand why the vegetation is like it is and how the water soaks into the soil so rapidly, and that’s why the surface water controls, apart from water quality, are of very much lower significance … than you’re making out. It’s that the – you can have areas adjacent to each other.  And because of this very high infiltration rate, there’s very little chance of run-off.  Now, the evidence for there being low run-off in the natural condition is no channel – there’s no channels eroded in … the surface.  It’s very level, it’s very flat.

…

And that tells me, being on the site, understanding the geomorphology of the site, is that surface water controls, it’s not a big worry in this particular design.  It is, as we’ve agreed with Dr Cresswell, Dr Hedjripour and Ms Holton – we’ve agreed that it’s this interaction of the surface and the groundwater that is – is of great import.

401 In other words, as this is therefore a rain-fed system, the experts are agreed that it is the interaction between surface water and groundwater which is the most important.

402 Consistently with this, while accepting that the site is a dynamic landform in that some parts will dry out more and some less, Dr Sutherland rejected the proposition that this meant that some of the artificial ponds would not therefore provide an adequate environment to support the continued occupation of the WSF.  Rather, in Dr Sutherland’s experience, success in relation to individual ponds relates to the soils, water, infiltration and levels within the landform.  Thus, he disagreed with the proposition that artificial ponds which were not situated above indurated sands were unlikely to provide acceptable habitat for the WSF because, in his opinion:

it’s really just a question of permeability.  And again, from an agricultural perspective, Mr Korman, we’ve got 400 years of changing permeability in these soil profiles.  So if the ecologists come back and say, look, all of these ponds need to be lined, or they need a greater or lesser degree of permeability, that’s something that can be readily manipulated in the landform.  So I can do that by adding clay or adding sand to clay to make it more free draining.  This can be modified, and I think the principle here is, not only in levels do we have the ability to have this variety of habitats which increases the likelihood of success, but you’ve got an adaptive management regime which allows for the structures to be raised or lowered depending on performance, too.

(Emphasis added.)

403 Added to this, as Dr Sutherland also explained, the ponds will be created at different levels in the landforms, over different substrate to provide the maximum degree of difference in hydroperiods that are suitable for the WSF and wallum froglets, within a band that the engineers have set.

404 Thus, Dr Sutherland was of the view, and I accept, that the ponds have very good prospects of success including because of the capacity to make modifications depending on the results observed through monitoring their operation in accordance with the Wallum Froglet MP, even though success cannot be guaranteed. Importantly in this regard, Dr Cresswell accepted that the period of time that is set aside for monitoring (being a 5-year period) after the Development has been completed might allow for adjustments to be made, which could accommodate the kinds of unmodelled impacts identified by him.

405 Thirdly, with respect to monitoring, Dr Sutherland opined that ponding happens very easily in this landform because there are the surface depressions as soon as there is any form of compaction and this can be seen on the Site.  An example is given in the photograph reproduced below from Dr Sutherland’s affidavit sworn on 23 September 2024:

Plate 2 – View looking north in MZ-1.  Note the standing water within a localised linear feature, possibly the result of historic trafficking by vehicles.

406 A further example of ponding and depression is contained in a photograph taken at the north of the Site reproduced below:

Plate 7 – View of the landform looking south, in the northern section of the site.  Note the standing, tannin-rich water present.

407 Dr Sutherland was therefore of the opinion that the site conditions tell the story that these ponds can be created relatively easily, the levels can be monitored and manipulated without any real concern, and this is why he is confident that the artificial ponds are adequate.

408 Fourthly, in relation to potential water flows and their impact on groundwater, counsel for the applicant directed Dr Sutherland and Ms Holton to a map reproduced below.  Dr Cresswell referred to this map in the Hydrology Joint Report where he asserted that in the north-west of the Site (being west of the central drain) an elevated groundwater level over 0.5 metres is modelled post development.  This, in Dr Cresswell’s opinion, results from the change in the use of the land, namely, from trees to urban across a pre-existing drain.  Dr Cresswell considered that this would result in reduced evapotranspiration beneath the urban area, thereby allowing groundwater levels to rise.

409 Dr Sutherland accepted that waterflows were more likely in MZ-1 where there was quite a slope from the east.  The elevation key on the left of the map shows it goes from blue (< = 1) and red (> 9).  Dr Sutherland says you will get flow associated with the creek when it overtops.  The stormwater structures associated with the development will overtop and flow with the land as it is designed.

410 Dr Sutherland explained that there is a bio-infiltration device that is going to feed the water into the ground.  Dr Sutherland accepted that during the overtopping event, if it is lower there, it will flow with the grade.

411 However, he also explained, and I accept, that, with the stormwater treatment and infiltration devices in place, it is likely that there will be no change in the undeveloped areas of the Land to the natural variation of 1 ½ metres in the groundwater level.  In other words, the effect will be neutral.  Specifically, he explained that:

The way I see it is this – the natural variation in the groundwater is one and a half metres, so the vegetation and the habitat and the ponded areas, currently, are there, and they live within that variation of the groundwater.  The amount of rainfall has a dramatic effect on this groundwater level, and … the site is very responsive to rainfall, soaking into the sand, with virtually no run-off, and that raises the groundwater level.  So the same variability – because it’s so – it’s a rain-fed system and it’s so responsive to rainfall, we’ve got the same variability in the undeveloped areas that we do now.

And that’s why I said to Mr Korman, there is no change to the undeveloped areas.  Where there is a change in the developed areas is, we’re hardening up those areas, and we’re causing more run-off from those areas. So concrete …the water runs to the stormwater system, and the stormwater system has been designed, then, to allow the re-infiltration of that water that would have soaked in before the development – it now goes to these infiltration devices, and soaks in to mimic what’s there now, and that’s really the proposition.  When you add that together, then the overall effect is the natural range of the one and a half metre rise and fall. You’ve got a change of 200 millimetres as a result within that natural variation.  We’re not making the groundwater go down another 200 millimetres on top; it’s within that variation.  So, in that way, with the stormwater treatment and the infiltration devices in place, it’s a neutral effect. It’s neutral on the level of the groundwater.

412 Finally, Dr Cresswell accepted, and Dr Sutherland agreed, that ongoing monitoring of groundwater level, which is a requirement of the Development, will significantly help to “prove up the groundwater modelling”, even though Dr Cresswell considered that an additional phase of groundwater modelling would give more confidence.

8.7    The parties’ submissions on the hydrology of the Site

413 The applicant’s case in respect of hydrology is, in effect, as follows:

The stormwater drainage system is flawed because it used the MUSIC model, which produces “unsophisticated” modelling outputs and is not tailored to the unique requirements of the surrounding sensitive Wallum wetlands.  Therefore, there is a real chance that the proposed stormwater treatment system will have adverse impacts (contention 1).

There is a lack of long-term maintenance arrangements (contention 2).

As a result of contentions 1 and 2, there is a “real chance” that the proposed stormwater treatment system will:

* discharge treated, nutrient-rich water into the surrounding wetland environment (contention 3);

* restrict natural overland water flows well below current levels, impacting the ecology of threatened species inhabiting the management zones (contention 4);

* alter the present pattern of fluctuating groundwater levels causing a substantial adverse impact on the hydrology of the management zones (contention 5); and

* eventually clog or malfunction due to a “lack of maintenance”, causing substantial flows of untreated high-nutrient and high-pH runoff will reach the management zones, thereby destroying their oligotrophic and acidic character (contention 6).

8.7.1    Contention 1: the modelling of the stormwater drainage system is flawed

414 I refer to my earlier description of key elements of the Stormwater MP in Part 6.6 above.  It will be recalled that the Stormwater MP found that the results of running the MUSIC modelling for groundwater indicated that:

the stormwater discharging into the groundwater system will have concentrations lower than the existing conditions.  Therefore, the proposed development will not have any adverse impacts on groundwater quality of the Wallum Froglet habitats.

415 It was common ground among the experts that the MUSIC modelling employed to design the stormwater system was based on Southeast Queensland catchments and pollutant generation characteristics.

416 The applicant however contends that the MUSIC modelling is unsophisticated and was not tailored to the unique environment of the WSF.  For the reasons that follow, that contention is not supported by the evidence.

417 First, as the respondents contend, the MUSIC model “is adapted to be site specific in that it incorporates local climate data, is based on relevant site’s rainfall catchments, and reflects the rainfall runoff behaviour of the site in its existing and developed conditions”.  As earlier explained, the Stormwater MP used MUSIC modelling methodology to determine the TSS, TP, TN and Gross Pollutants levels in three scenarios:

(1)    pre-development (being the existing site conditions);

(2)    post-development (untreated) (being the Site, but without any water quality structures); and

(3)    post-development (treated) (being the Site with proposed water quality structures).

418 The model was also split into each of the stages of the Development.

419 Furthermore, given the sensitive nature of Wallum Froglet habitats, the Stormwater MP explained that “a water quality strategy was developed to achieve a Neutral or Beneficial Effect (NorBE) on water quality for each existing and proposed Wallum Froglet habitat.”

420 Secondly, Dr Hedjripour accepted that the stormwater treatment management plan was designed using the MUSIC model based on average climatic conditions and, having reviewed the plan, was of the opinion that the plan was “based on the industrial standards, certainly.  That’s how it’s done everywhere in Australia.  We have MUSIC.  Everything is done as usual”.  Dr Hedjripour also confirmed that MUSIC takes the mean annual rainfall for the council area as an input.  As a result, the value of rainfall directly impacts on the way in which the modelling works.  While in his opinion, this meant that the model fails to have regard to “the whole variability of rainfall that may happen across the site” and is “less sensitive”, he accepted that it was “standard practice” to use the MUSIC model.  Dr Hedjripour’s criticisms of the use of the modelling were therefore (to use his words) directed towards “a gold plated model” like the software for tracking every particle travelling downstream of a nuclear plant (if it were even applicable to the present circumstance, about which he was uncertain), rather than establishing a fundamental flaw with the modelling used in designing the stormwater treatment system.

421 Thirdly, the applicant takes issue with the MUSIC model adopting the pollutant load generation algorithms for urban environments; yet the use of these algorithms is required by the “Water by Design MUSIC Modelling Guidelines”.  As Ms Holton explained, the MUSIC modelling used to design the stormwater treatment system was based on Southeast Queensland catchments and pollutant generation characteristics with the consequence that “the modeller does not have the latitude to play around with the algorithms of pollutant generation within that model”.  However, I agree with the respondents that, in any event, there is no evidence and no suggestion from the applicant’s experts that pollutant generation on the site would likely differ from pollutant generation in urban southeast Queensland catchments.  Despite Dr Hedjripour’s observations regarding his preference for a “gold standard”, none of the applicant’s experts criticised the use or parameter inputs of the MUSIC model created for the site.

422 Moreover, the Stormwater MP did not only undertake stormwater modelling for the site using MUSIC. As earlier explained, it also used the DRAINS hydrological and hydraulic software package. DRAINS was used to determine the overall site flow under existing and developed conditions and overflows from each individual basin upstream of the Wallum Froglet habitats area.  It was applied to a range of storm durations between 5 minutes and 3 hours of varying intensity commencing with 1 year ARI events up to 100 year ARI events.

8.7.2    Contention 2: a lack of long-term maintenance arrangements

423 The applicant submits that the stormwater drainage system lacks long-term maintenance arrangements.

424 I do not consider that this submission is established by the evidence.  To the contrary, the management plans provide a comprehensive suite of monitoring programs, with clear scheduling and timing for this monitoring to take place. In particular:

(1)    The Wallum Froglet MP provides that prescribed actions apply to the WSF as they occur in the same Wallum habitat.

(2)    Monitoring requirements for each phase of the Development are outlined in Table 6.1 (set out above in Part 6.7.7 above, extending to monitoring post construction for five years to ensure adequate assessment of the potential impacts.  As earlier explained, Dr Cresswell acknowledged that five years of monitoring as provided for in the management plans would enable adjustments to be made to the ponds if they were not in the correct location.

(3)    As also explained at in Part 6.7.7 above, the Wallum Froglet MP puts in place a Trigger Response Plan for actions to be taken with respect to retained and constructed habitat in the event that water quality, hydrology, weed control, cane toad, mosquito fish, or WSF and Wallum Froglet populations do not meet performance criteria.  Thus, as the Wallum Froglet MP explains, monitoring results will inform adaptive management practices with expert advice including with respect to pest control and habitat enhancement.  For example, the Wallum Froglet MP provides that:

In the event of the failure of compensatory habitat areas to establish, an adaptive response should be implemented, with the developer having the option to complete further habitat works where suitable donor material remains in undeveloped portions of the construction site, or planting of tube stock consisting of species of sedges, rushes and grasses. … A combination of both approaches may be utilised following advice from the project ecologist.

(4)    Further, as the respondents contend, there is provision for active management and monitoring of the ponds in the five years after occupation and also after that period having regard to the requirements of the Vegetation MP (discussed at Part 6.2 above).  Moreover, condition 104 applies at all times and requires MZ-1, MZ-2 and MZ-4 to be managed to prohibit, among other things, any act or omission which may adversely affect indigenous fauna and their habitats.

425 Moreover, Condition 8 of the Consent provides that a detailed Construction Environmental MP is to:

(1)    document “all environment related commitments for each Stage of development including but not limited to mitigation, management, restoration, monitoring, and reporting detailed” in all of the management plans, including the Surface Water and Groundwater MP, the Stormwater MP, the Vegetation MP, and the Wallum Froglet MP;

(2)    include monitoring requirements in each of the management plans;

(3)    provide for at least six monthly reporting on compliance for at least five years during subdivision construction works, or two years following the issue of a subdivision certificate for stage 5 (whichever is the later) and annual reporting until return of the final maintenance bond; and

(4)    include reporting on the performance (amongst other things) of the bioretention basin and bio pods and the North South drain by the project engineer or a professional with sufficient expertise, demonstrating compliance with the approved design and provision of an alternative design, in the event of any failures, that will prevent any future or ongoing failures for these works.

8.7.3    Contention 3: treated water emerging from the drainage system is nutrient-rich

8.7.3.1    Contention 3(a): the stormwater drainage system will not achieve NorBE

426 The applicant contends that, contrary to Ms Holton’s evidence, the stormwater drainage system will not, in fact, achieve NorBE.  Despite Ms Holton’s comprehensive and unchallenged evidence, the applicant submits that Ms Holton’s opinion that NorBE will be achieved is “incorrect” and submits that the Court should instead prefer the applicant’s own analysis (which, as I explain, is not corroborated by its own experts’ evidence).

427 The applicant’s starting point for its contention is to take the current (pre-development) TN and TP levels identified by Ms Holton in her report which she assessed based on her own water quality testing conducted at five locations across the site.  The locations chosen by Ms Holton aligned generally with the location where WSF was sited in 2022/2023 or with either existing Wallum Froglet habitat or the existing central drain.  At site GSSW1, Ms Holton assessed TN as 0.7 and TP as 0.04.  The applicant asserts, however, that these figures are the starting point, which are then to be compared to the predicted TP and TN levels.

428 To identify the predicted TP and TN levels, the applicant uses the figures set out in Table 22 of the Stormwater MP, which is reproduced at paragraph 246 above.  That table predicts (for Wallum Froglet 03) a mean concentration of TN to be 1.608 and a mean concentration of TP to be 0.240.

429 The applicant thus compares the 0.7 and 1.608 (TN) and 0.04 and 0.240 (TP) to contend that the stormwater drainage system will deliver water quality “containing dramatically higher levels of TP and TN to the WSF wetlands” (emphasis added.).  In other words, the applicant asserts that, as for TP, it is six times higher than the current level and, as for TN, it is twice as high as the current level.  The applicant then uses these comparisons to state that the increases “are very serious”, and refers to A/Prof Wardell-Johnson’s evidence that a 50% increase in TN levels would be problematic for the WSF.

430 The applicant’s contention that there will be dramatically higher TN and TP levels is incorrect, and the analysis engaged in by the applicant to reach this conclusion is misconceived.  As the respondents contend, the applicant’s contentions depend upon an invalid direct comparison between Ms Holton’s sampling results and the modelled levels of TN and TP in the Stormwater MP.

431 First, in relation to NorBE being achieved, Ms Holton expresses the opinion in her expert report that:

The proposed system achieves the relevant BSC [(Byron Shire Council)] targets and demonstrates that incorporation of the treatment devices into the Development Works will result in a reduction in TSS, TN and TP exported to the receiving environment including groundwaters compared to the pollutants discharging from the site in its pre-developed form.  This is described by the NorBE assessment in Section 3.4.2 of the [Stormwater] MP.

432 It will also be recalled that, during the concurrent evidence session, Ms Holton gave evidence that the stormwater treatment train had been assessed under the NorBE quality assessment guidelines.  That NorBE assessment, Ms Holton deposed, indicated that there will be lower quantities of nutrients discharging into the receiving environment post-development than the water quality discharging from the site today.  Ms Holton explained that this is because of the bioretention systems being put in place, which are designed specifically to remove nutrients from the water that they treat.

433 Ms Holton’s evidence on this subject was compelling and none of the experts expressed any disagreement with Ms Holton’s opinions in this regard.  To the contrary, Dr Martens (whose firm prepared the Stormwater MP) concluded that the MUSIC modelling result for the site and each Wallum Froglet habitat indicate that “each stage of the development will not degrade receiving water quality”.  No basis has been established for rejecting Ms Holton’s evidence.

434 Secondly, the applicant’s comparison between, on the one hand, Ms Holton’s TN and TP assessments from a site visit in August 2024 and, on the other hand, the Stormwater MP’s predicted TP and TN levels based on MUSIC modelling, is based on a misunderstanding.

435 Ms Holton explained that the samples she collected on the site were of surface water, whereas the NorBE assessment of the MUSIC modelling results in the Stormwater MP explicitly related to groundwater quality which is reproduced at paragraph 246 above.

436 Nor can a valid comparison be made between a surface sample taken on a particular day after a rainfall event, on the one hand, with a modelled result based on averages.  As Ms Holton explained in her evidence:

there's multiple reasons that those scenarios are not comparable.  So we can’t compare a modelled result which is a mean or average result given from a model to a discrete sample taken onsite.  Those are not – that’s not comparable.  We can’t compare any surface water sample, which was taken after some rainfall in the preceding days to our site visit, and suggest that it is comparable to a groundwater output from a MUSIC model. We are not looking at apples and apples.  This is not a useful comparison between data and modelled values.

437 In other words, it is obvious, as the respondents contend, that a discrete surface water sample will represent no more and no less than the chemical concentration of surface water taken from a specific location under the specific conditions present at the time that the sample was taken and cannot meaningfully be compared to an averaged or mean result.

438 Ms Holton and Dr Cresswell also agreed with Dr Sutherland that it was important to consider the hydrologic separation between the development area, on the one hand, and the maintained habitat and artificial ponds, on the other hand.  Dr Sutherland also was of the view that it was important to consider the attenuation effect in terms of the distance to the drain. The latter is a reference to the high rates of vertical infiltration.

439 It follows that, in my view, the applicant’s comparison is invalid.  Thus, the applicant has failed to establish that the design of the stormwater treatment system is fundamentally flawed and there will be an influx of high-nutrient stormwater runoff.

8.7.3.2    Contention 3(b): forecast TP and TN levels in the untreated stormwater runoff post-development will be high

440 The applicant then attempts to assess the predicted TN and TP levels in the untreated stormwater runoff post-development.  The applicant does this by taking the figures in Table 4 of the Stormwater MP.  That table records that the stormwater treatment system is predicted to reduce the TP levels by 61.9% and the TN levels by 62.2%.  Taking these figures, the applicant asserts that this means around 38% of TP and TN remain in the untreated water.

441 The applicant then proceeds to divide the forecasted TP and TN levels by 38%.  This, in the applicant’s submission, confirms that TP is forecasted to be 0.63mg/litre in untreated water (being over 15 times the current TP levels of 0.04mg/L), and TN is forecasted to be 4.23 mg/litre in untreated water (over six times the current TN levels of 0.7 mg/L).

442 The applicant concludes that the amount of nutrients in these untreated water flows which will be introduced into the surrounding wetlands is “substantial”.

443 Again, with respect, the applicant’s submission is misconceived.

444 First, putting the applicant’s calculations to one side, the total concentration levels of TP and TN in the untreated water is not the question.  As the respondents assert (and as has been made very clear by the expert evidence), there is a difference between total concentrations of TN and TP, on the one hand, and what is bioavailable, on the other hand.  Indeed, Dr Cresswell agreed that nitrogen and phosphorus would be “a lot lower than total nitrogen”.

445 Secondly, the applicant’s analysis uses figures from the Stormwater MP, which were extrapolated from the MUSIC model, to predict actual TP and TN levels for untreated waterflows into surrounding wetland.  Yet, as the respondents assert, actual concentrations in the receiving environment will be impacted by multiple factors, including preceding rainfall, algal activity and bacterial responses.

8.7.4    Contention 4: the stormwater drainage system will substantially reduce surface water flows

446 The applicant’s fourth contention is that the proposed drainage system makes no attempt to “mimic the pre-existing water flows or to ensure that any changes do not impact the present WSF habitat hydrology”.  Rather, despite being designed to ensure that most of the runoff is captured in the perimeter swales, Dr Hedjripour pointed to the lack of modelling to show whether, under natural conditions, the amount of rainfall retained by the swales would have sufficed to inundate the neighbouring wetland habitat.  Nor, the applicant contends, has modelling of the regular, frequent inflows that occur during small events been undertaken.  This is despite these inflows contributing to the wetland’s natural filling and draining process and being critical to maintaining its hydrological balance.  Rather, the applicant submits that the modelling that was undertaken (being the DRAINS model) is “rudimentary” and fails to capture the continuous inflow and outflow patterns or account for seasonal variability that is key to the ecological functioning of the wetlands.  The applicant relies on the evidence of Dr Hedjripour in this regard, who opined in his expert report:

While DRAINS is effective in simulating the hydrology of short-lived, discrete storm events, it has significant limitations when used in the context of wetland ecosystems.  Wetlands, particularly those inhabited by species such as the Wallum Sedge Frog, depend not only on peak flow management but also on the regular, frequent inflows that occur during small storm events.   These smaller, more frequent inflows contribute to the wetland’s natural filling and draining processes, which are critical to maintaining its hydrologic balance.

The DRAINS model, being event-based, does not capture this continuous inflow and outflow pattern, nor does it account for the seasonal variability that is key to the ecological functioning of the wetlands.   As such, the reliance on DRAINS modelling for assessing the effectiveness of the OSD structures does not provide a complete picture of the development’s potential impact on the baseline hydrologic regime.

447 The applicant notes that the swales directly abutting WSF breeding ponds to the east and west of the Development Footprint, and the eastern swale adjacent to MZ-1 (where the MRS has been detected), are designed to prevent all flow from 15-minute rainstorms.  The applicant refers to the evidence of Dr Hedjripour, who opined that the swales could significantly change the hydrological cycle.  This, Dr Hedjripour opines, could thereby reduce water availability in the habitats, particularly during breeding cycles.  The applicant submits:

As Dr Hedjripour pointed out, the question of how adverse the impact of holding back a flow of even a small amount of rainfall might be for the wetlands can only be resolved by the modelling that was not carried out…

448 I do not accept the applicant’s contentions.

449 First, the applicant’s submission that the objective of the stormwater drainage system is to minimise surface water runoff is unsupported by evidence.  As the respondents contend, there is no evidence as to the “normal” object of stormwater drainage systems; nor is there evidence that the proposed drainage system needs to “mimic pre-existing patterns” to avoid an adverse impact of hydrology.

450 Secondly, the absence of modelling of surface water flows does not take the applicant’s contention any higher.  The existing hydrology was modelled using MUSIC (for treatment devices), DRAINS (for stormwater quality) and MODFLOW (for groundwater flows).  However, while the applicant takes issue with the absence of surface water modelling, none of its experts in fact undertook this modelling.  There is no evidence that Dr Hedjripour had either visited the site or prepared any modelling of the kind he referred to.  Rather, as the respondents submit, Dr Hedjriour’s opinion as to the effect of the lack of modelling rises no higher than to say that the stormwater treatment devices “might work well” and that he was “not saying they don’t”, but he did not regard their effectiveness as being supported by modelling. Effectively, the applicant’s submission again seeks to rely upon an alleged lack of adequate modelling to shift the onus of proof to the respondents to prove no significant impact.

451 Thirdly, Dr Hedjripour eventually agreed with Dr Sutherland that the system was rainfall-dominated, with rainfall exceeding evapotranspiration, and that the created habitats and maintained habitats were not reliant on surface runoff (even though he qualified that agreement by reference to an “average value”).

452 Finally, as the respondents submit, the applicant’s proposition is also based on a misunderstanding of the function of the swales.  The swales are stormwater detention structures that receive runoff from the Development Footprint and slow down its release to the receiving environment.  Their purpose is not, as the applicant contends, to permanently hold the water they capture.  Ultimately, the water captured in the perimeter swales will be discharged into the receiving environment via groundwater infiltration.

8.7.5    Contention 5: the effective impact of the Development on groundwater levels and therefore on hydrology of the management zones is unknown

453 The applicant contends that there is no modelling to assess the impact of the Development on the hydrology of the management zones, and thus there is a “real chance” that the management zones will not continue to constitute a hospitable environment for the WSF and MRS post-development.

454 As explained above, the hydroperiod is a concept that refers to the period during which surface water is present in WSF habitat.  As the applicant states, if the hydroperiod is too short, the tadpoles do not have enough time to mature.  If the hydroperiod is too long, mosquito fish and competitor species may thrive.

455 The applicant referred to the hydrographs produced at groundwater monitoring sites which show that the groundwater occasionally reaches the surface and disperses.  The applicant contends that raised groundwater levels will cause the groundwater to reach the surface and disperse more frequently.  This, in the applicant’s submission, would thereby extend the hydroperiod and potentially prevent the seasonal drying essential to control the predator mosquito fish.  It follows, in the applicant’s submission, that it is important to be able to understand how the new groundwater recharge regime will impact the future water table over time.  This exact data, however, is not available.

456 The modelling that was conducted is set out in the Supplementary Hydrogeological Report and was confined to generation of predicted future groundwater levels averaged across all points in time.  The applicant gives the example, that “the average drop in the water table in the vicinity of MZ-2 was predicted to be approximately 10-20cm” but says that:

[t]his figure is effectively meaningless as ground water levels are never static.  As the hydrographs illustrate, the levels fluctuate, at times widely.  A single average predicted drawdown figure provides no indication of the pattern of future fluctuations, and specifically how groundwater levels will respond, in the new and radically altered groundwater recharge regime, to dry and wet conditions …

457 In regard to this modelling, Dr Cresswell opined in the Hydrology Joint Report that the modelling emphasises the average condition but “does not consider the variability in the water table levels”, nor does it consider “the fact that most bores show groundwater discharges to the surface after high rainfall events”.  In the Hydrology Joint Report Ms Holton, however, opined that by modelling the average condition and demonstrating that this will be maintained post-development, it is “intuitive” without the need for modelling, that the groundwater table will be higher than average during wet periods.  Ms Holton explains:

The ponds being created for WF/WSF habitat have been variously designed to intersect the average groundwater table.  It follows that a higher-than-average groundwater table must also be intersected by the ponds mimicking the discharge of groundwater to the surface (in this case the pond beds) noted as important by RC [(ie. Dr Cresswell)].

458 Based on the modelling, conceptualisation by others and his own knowledge of the soil:plant:water:relationships in this landform, Dr Sutherland was “content that the yield response to water of the wetland plants in this habitat is high.  That is, the plants respond readily to rainfall. In this rootzone, meteoric water is their primary source of water (as opposed to lateral groundwater flows and any connate, formation and interstitial waters beneath).”

459 The applicant contends that Dr Sutherland’s and Ms Holton’s evidence that average conditions will remain largely unchanged does not engage with the issue, submitting that:

160.    …Their observation that intuitively groundwater levels can be expected to be higher than the average in wet years and lower than the average in dry begs the critical questions of how much higher and how much lower, and for how long, given that the only modelling output is a single average drawdown level across all future weather conditions.

…

162.    …The fact that at present fluctuations are large, and that in the future the average levels are modelled to decline by a relatively small amount, tells us nothing about how the groundwater levels will be impacted by wet and dry periods.

460 The applicant goes on to contend that, because of this uncertainty, there is a “real chance” that the management zones will not continue to be hospitable environments for the WSF and MRS and, as a consequence, poses the question: “Is the predicted drop in groundwater levels accurate to within 1 cm or 10 cm in either direction?  Is the prediction 99% or 60% likely to be accurate?”  The applicant then wrongly seeks to shift the burden of proof onto the respondents by submitting:

170.    Thus, the onus rests with the designers of systems that involve major disruption to complex ecosystems to demonstrate that the systems have been designed to compensate for those disruptions.  If there is no evidence of modelling that establishes that current hydrological patterns will persist post-development, the unavoidable conclusion is that there is a real chance that they will not, and a real chance the adjoining habitat will experience significant adverse effects.

461 Again, the propositions advanced by the applicant must be rejected.  First, as the respondents contend:

The groundwater modelling was based on a daily time step providing the results of long term direct modelling of the site’s groundwater via multiple sites and the supplementary hydrogeological assessment prepared by Martens & Associates in August 2023 updated and refined the groundwater modelling based on an additional 18 months of groundwater monitoring data …  The Applicant’s submission that the groundwater modelling is “effectively meaningless” … reflects a misunderstanding of what is known about groundwater behaviour on the site in response to wet and dry conditions.  Both Dr Sutherland and Ms Holton’s evidence on this issue … were essentially that the hydrographs demonstrated that groundwater levels respond to rainfall with increased levels following rain events and decreased levels following periods of low or no rainfall …  Dr Sutherland’s evidence was that the groundwater modelling was a “fair representation of what’s happening on the site at the moment” …

(Reference omitted.)

462 As the respondents correctly, therefore, conclude, “[t]he fact that the groundwater modelling refers to average conditions does not render it meaningless: there is no reason to assume the existence of a change in how the groundwater table responds to rainfall on the site outside of the Development Footprint; that [ie the groundwater table] will continue to fluctuate over a range of 1.5 metres as it currently does.”

463 Secondly, as the respondents submit, Dr Sutherland explained the alleged “failure to model groundwater behaviour over time” on the basis of the extent of the natural groundwater variations.  In his view, there is a lot of data showing that, historically, groundwater in a natural condition fluctuates by 1½ metres up and down and, as a result of the development, there will be a change of 200mm up and down over the model period.  Thus, the variation brought about by the Development is within the natural range and of no consequence.  In other words, as the respondents submit, “if the groundwater level fluctuations resulting from the development are smaller than the natural fluctuations, any development impact is absorbed within (and is a small proportion of) the natural range”.

464 Martens and Associates reached the same conclusion in their Supplementary Hydrological Assessment, finding that, in respect of existing frog habitats, potential modifications in terms of drawdown “are not considered significant because they are minor and will not be material when considered within the context of the naturally highly dynamic water table that occurs within the site where daily and seasonal water table fluctuations are common.”

465 Similarly, in respect of proposed WSF breeding ponds, they opined that:

Drawdown results … show that groundwater levels at the proposed Wallum Froglet breeding ponds remain relatively unchanged (within 0.1 – 0.2m of pre-development conditions) post-development.

466 Nonetheless, as the authors also observed, following construction of the ponds, “monitoring will be undertaken to ensure that the ponds interact with the groundwater table in the correct way to produce the optimum ecological conditions for the frog species.”  They also recommended monitoring of groundwater levels at the constructed frog breeding ponds for 12 months following construction to confirm design objectives.

467 It follows, as the respondents submit, that there is no evidence that a pattern of “higher highs and lower lows” or “smoothing out of variations” will occur in groundwater levels as a result of the Development, particularly given that the infiltration devices within the Development Footprint seek to minimise such changes.

468 Thirdly, as the respondents contend, the groundwater modelling is only one of the tools used to understand groundwater behaviour at the site.  As Dr Sutherland explained, the hydrographs provide a direct depiction of how groundwater will behave in response to wet and dry conditions.  Dr Creswell agreed that post construction monitoring of groundwater for five years (as required by the Development) would help, even though he strongly suggested there should be an additional phase of groundwater modelling for greater confidence.

469 It follows that the natural range of groundwater level fluctuation recorded during monitoring at the site shows the environment is already adapted to a range of groundwater levels of up to 1.5 metres.  Neither the evidence nor common sense support the view that a small alteration to the average groundwater elevation within the Development Footprint, as is predicted, would likely result in changes of greater magnitude in groundwater outside the Development Footprint.  Rather, as the respondents submit:

The impact of the development on groundwater levels outside the Development Footprint is simply dwarfed by the impact of the local climate, which is the dominant influence on groundwater levels.  There is no reason to find that periods of high rainfall will not continue to result in expression of groundwater at the surface in the Management Zones and periods of low rainfall will not continue to result in the drying of ephemeral ponds.

470 Fourthly, as I set out at paragraph 215 above, the Supplementary Hydrological Report included revised calibration results, finding that the predicted groundwater levels are reported to be accurate to within a residual mean of -0.06m. Overall, the report found on this issue that the predicted pre-development conditions model closely replicates the observed groundwater level data and the model was considered satisfactory for predictive purposes. Model confidence levels were also addressed within the hydrogeological assessment, by reference to the Australian Groundwater Modelling Guidelines and found to be suitable.

471 On the other hand, Dr Cresswell referred to the Peeters & Middlemiss publication concerning uncertainty analysis for groundwater modelling.   However, as the respondents assert, he accepted that this was directed towards uncertainty analysis in much larger projects such as resources projects, consistent with it having been written in the context of coal mining and coal seam gas development.  Dr Cresswell also agreed in cross-examination that the adjustment of parameters in the groundwater modelling undertaken by Martens Consulting Engineers in 2023 so as to calibrate the model by reference to site conditions would improve the output of the model.  While Dr Cresswell nonetheless considered that the project “would benefit from additional uncertainty analysis”, that ultimately takes the matter no further, falling short of suggesting what the result of any such analysis may be.

472 Fifthly, there is no basis in the evidence on which to find that the “impact on MZ-2 would likely disrupt the pattern of groundwater discharge” at the surface.  As I have earlier found, Dr Sutherland and Ms Holton’s evidence (which I accept) is that the predicted lowering in average groundwater levels in this area is within the typical level of variation experienced in this area of the landform.  In addition, as the respondents submit, and as observed in the Supplementary Hydrological Report set out at paragraph 214 above, the groundwater modelling “indicates a bias to slight under-prediction of [groundwater] head”, and the model does not include the full suite of groundwater infiltration devices proposed to be constructed leaving open the possibility that even the minor drawdown predicted by the model may not occur.

473 Finally, the applicant’s submission again, with respect, seeks to reverse the onus of proof by contending that the Court should find that there is a real chance of a “massive” alteration of ground water flows with consequential impacts on the relevant species by reason of alleged deficiencies in the modelling.  However, the onus plainly lies on the applicant to establish on that the proposed action is “likely to have a significant impact” on one or more of the five listed threatened species:  Strathbogie at [344].  In any event, the applicant’s assertion that there is “no evidence” of the relevant modelling cannot stand in the face of the evidence, including in particular:

(1)    the assessment of the groundwater modelling;

(2)    the expert evidence of Dr Sutherland and Ms Holton as to the suitability of the modelling;

(3)    implementation in the approved management plans of groundwater modelling measures recommended by the hydrologists; and

(4)    the opinion of Dr Creswell, as expressed in his report and repeated (with the agreement of all of the experts) in the Hydrology Joint Report, that the approved management plans provide “comprehensive and appropriate” in principle safeguards and habitat preservation that favours the WSF and MRS.

8.7.6    Contention 6: there is a real chance that the swales will eventually clog or malfunction, causing overland flows of untreated high-nutrient and high-pH runoff

474 By this contention, the applicant asserts that the swales will eventually clog or malfunction because they will not be maintained.  This clogging or malfunctioning, the applicant asserts, will lead to nutrient-rich runoff infiltrating the wetlands.

475 This submission should be rejected.

476 First, the argument does not have regard to Consent condition 30(n), which requires the submission and approval by Council of a “Bioretention basin construction and maintenance management plan”.  It also requires inclusion of a maintenance plan “after completion”.  As the respondents submit, this post-completion maintenance plan would logically include weed removal, as provided for in the CEMP checklist. Furthermore, as earlier explained, condition 97 of the Consent requires regular periodic inspections and repair of any defects over the maintenance period of two years after construction of each stage of the Development, and includes requirements for sediment and weed removal and plant establishment.

477 Secondly, the applicant refers to Dr Cresswell’s assertion that there was a lack of a “longer term vision” as to how the swales would be managed in perpetuity.  However, I do not attribute much weight to this statement in the face of the comprehensive conditions referred to above.  In any event, as the respondents contend, the applicant’s suggestion that the swales will malfunction or clog is exaggerated.  It is evident from the engineering plans prepared by CivilTech Consulting Engineers which form part of the Consent (as depicted below) that the swales are designed using highly permeable engineered soil profiles (sandy loam and coarse sand), with the presence of plantings designed to maintain their permeability through the growth of roots and facilitation of biological processes (as the respondents contend):

478 In short, the applicant’s submission that the swales will become clogged and cease to function is purely speculative.

479 Finally, the applicant contends that the fact that the swales will be partially owned by the entity that will own the road network, and partially owned by the second respondent, makes the prospect of ongoing maintenance “even more remote”.  This proposition is purely speculative.  In any event, as I have earlier found, the perimeter swales will be wholly owned by the Council and the proposition that Council will not maintain the swales over the longer term such that they will become overrun is, again, unfounded speculation.

8.8    Findings on hydrology and hydrogeology

480 Having regard to the comprehensive evidence from the hydrology and hydrogeology experts, I make the following findings of fact (insofar as I have made findings of fact based on the hydrology evidence given in relation to the WSF environment and WSF artificial ponds, I have set those findings out in Part 9.8 below.)

481 First, the stormwater drainage system:

(1)    is not fundamentally flawed: see Parts 8.7.1 and 8.7.3;

(2)    does not lack long-term maintenance arrangements.  The management plans provide a comprehensive suite of monitoring programs, with clear scheduling and timing for this monitoring to take place: see Part 8.7.2;

(3)    will not substantially reduce surface water flows.  The swales – being stormwater retention structures – will receive runoff from the Development Footprint and slow down its release into the receiving environment: Part 8.7.4; and

(4)    will re-infiltrate treated stormwater within the Development Footprint and/or at its perimeter and ensure that the Development has a neutral or a beneficial effect (NorBE) on water quality: see Part 8.7.3.

482 Secondly, the natural range of groundwater level fluctuation recorded during monitoring at the Site shows the environment is already adapted to a range of groundwater levels of up to 1.5m.  Neither the evidence nor common sense support the view that a small alteration to the average groundwater elevation within the Development Footprint, as is predicted, would likely result in changes of greater magnitude in groundwater outside the Development Footprint: see Part 8.7.5.

483 Thirdly, the proposition that there is a real chance that the swales will likely clog or malfunction is purely speculative: Part 8.7.6.

9.    WALLUM SEDGE FROG

9.1    The national recovery plan for the WSF and other wallum-dependent frog species

484 The National recovery plan for the wallum sedgefrog and other wallum-dependent frog species (2006) (WSF recovery plan) is a multi-species plan for wallum dependent frog species of coastal south-east Queensland and eastern New South Wales.  It was prepared for the Commonwealth, the Queensland Environmental Protection Agency, Queensland Parks and Wildlife Service, and the Department of the Environment and Conservation (NSW).  While the WSF recovery plan includes four species of frog, its adoption as a national recovery plan under the EPBC Act refers only to the WSF.

485 For the reasons set out earlier at Part 3.6 above, I have given the WSF recovery plan, being a plan made under s 269AA of the EPBC Act, considerable weight:  see Friends of Leadbeater’s Possum at [1416] (Mortimer J).

486 The WSF recovery plan describes the WSF as:

[a] small tree-frog with a pointed snout; snout-to-vent length (SVL) of adult males approximately 25mm, SVL of adult females 27-31mm.  Dorsal colouration is grey-brown, beige or bright green, occasionally with dark flecking.  The skin is smooth above and granular below.  The venter (underside) of frogs is white except for the throat, which is peppered with brown.  A dark brown stripe runs from the snout through the eye and tympanum (the ear).  A prominent white streak, starting below the eye, runs back over the shoulder onto the flanks, breaking up into a series of raised (glandular) spots.   The toes are partly webbed while the fingers have vestigial webbing.  The finger discs and toepads are conspicuous.  The posterior thigh is blue or purple-blue in colour, with a little orange ventrally.  Usually there is some blue colouration in the groin as well.

487 The WSF recovery plan found that the WSF is “likely to have suffered significant habitat loss in areas impacted by urban development, the establishment of pine plantations and sand mining”.  However, it also found that sizeable populations of the WSF persist in protected areas in both Queensland and New South Wales.  In particular, the WSF recovery plan records that in New South Wales, the WSF “is known from Broadwater, Billingugel, Bundjalung, and Yuraygir National Parks as well as Tyagarah and Broken Head Nature Reserves.”  In this regard, it will be recalled that the Tyagarah Nature Reserve is to the east of the Site (see paragraph 103 above).  The WSF Recovery Plana also records that recent monitoring in northern New South Wales (where the Land is located) suggests the numbers of the WSF “remain stable at most sites”.

488 The WSF recovery plan also explains that:

(1)    breeding of the WSF occurs in spring, summer and autumn after rainfall;

(2)    males call from sedges above water;

(3)    the male WSF’s call is a soft, buzzing sound;

(4)    water at breeding sites is usually clear, heavily tannin-stained and acidic (pH<6.0)

(5)    fish are generally scarce at these sites;

(6)    for breeding habitat, the WSF “shows a clear preference for ephemeral (seasonally inundated) perched swamps with emergent sedges”; and

(7)    for non-breeding habitats used by the WSF, the WSF “appears more sedentary, sheltering amongst sedges, reeds and ferns during dry periods” and, during wet periods, “may move away from breeding areas.”

489 Threats to the WSF are recorded in the WSF recovery plan as follows:

Habitat loss and fragmentation resulting from residential and resort development, agriculture, and establishments of pine plantations (especially in mainland areas).  Trampling of reed beds at sites with heavy visitation (in particular freshwater lakes on sand islands such as Fraser, Moreton and North Stradbroke) may also pose a threat.  Other likely threats include:  habitat alteration due to weed invasion, Chytrid fungus infection, and inappropriate fire regimes.  Deterioration of water quality and altered hydrological regimes may also be of concern, especially in habitat adjoining areas subject to development. In addition to these threats, the mosquito fish (Gambusia holbrooki) may threaten populations in low-lying areas subject to inundation.  Biocides used in weed and insect control may also pose a threat in urban and urban-fringe areas.  Competition with the related common sedgefrog L. fallax in disturbed areas is of concern.  In some areas, pig damage may have a negative impact on L. olongburensis…

9.2    The applicant’s expert witnesses

490 The applicant relied upon the expert evidence of A/Prof Wardell-Johnson with respect to their case that there will be a significant impact on the WSF.   I have already set out A/Prof Wardell-Johnson’s experience generally and my findings with respect to the weight to be given to his evidence.  Subject to those concerns, I accept that he has expertise with respect to frogs including acid frogs.  As A/Prof Wardell-Johnson explains:

I have a long history of involvement in frog research, have discovered and described two new species (Geocrinia vitellina, G. alba – both now Anstisia), described a new genus of frogs (Spicospina), and established and coordinated the recovery plan for the two species that I discovered.  I have also supervised several PhD projects on frogs.  In my academic research and teaching at The University of Queensland and Griffith University (1998-2007), I supervised numerous field trips to North Stradbroke Island and K’gari, including several projects on acid frogs in each area. I also supervised an Honours project on acid frogs (Neilson 2000).  I have published extensively on frogs.

9.3    The respondents’ expert witnesses

491 The respondents called Mr Karl Robertson and Mr James Warren to give expert evidence with respect to the WSF.  In line with my findings earlier, Mr Robertson’s evidence with respect to the WSF was clear, well-reasoned, grounded in empirical evidence and reflected his strong grasp of the management regimes applicable to the development:  see above at Part 7.4.2.

492 Mr Warren is a semi-retired ecological consultant.  Mr Warren’s expertise was not challenged, and I have also found his evidence to be very helpful and compelling.  He described his experience and expertise as follows:

I am the Director of James Warren & Associates Pty Ltd Ecological Consultants and former Director of JWA Pty Ltd Ecological Consultants.

I have a Bachelor of Science degree (UNE Armidale NSW) and Master of Applied Science degree (UTS Sydney).  The Master’s degree was completed by Thesis in wetland ecology.

I have worked as a professional ecologist for 37 years in New South Wales and Queensland.

…

I worked as an ecological consultant for Codlea Pty Ltd on this site between 1997 to 2012.  During this time, I completed several flora and fauna surveys and produced a number of reports.

I have particular expertise in working in the Wallum environment and have worked on projects requiring the survey, conservation and habitat restoration for Wallum Sedge Frogs (WSF).  These projects include Kings Forest (south of Kingscliff), far northern NSW, Bundilla (near Mooloolaba on the Sunshine Coast) and Coolum Ridges south of Noosa.

493 Mr Warren accepted that the idea of artificial frog ponds was first floated in his amended ecological assessment. While the applicant suggested that it may be difficult for Mr Warren to be impartial as to the utility of his own idea, I accept Mr Warren’s evidence that he supported the frog ponds based on his awareness of the use of frog ponds at two other developments at Caloundra South and the Sunshine Coast airport extension, and that he would not be supporting them if they had not worked in those two cases.  In my view, the applicant’s challenge to Mr Warren’s impartiality should be rejected.

9.4    Major points of agreement

494 As I explained earlier, the joint reports in certain respects were of limited assistance.  The WSF Joint Report contained a section titled “Matters of agreement” that, in substance, did not in fact record the areas of agreement among the experts.  Doing the best I can with the WSF Joint Report, there is common ground between the experts on very limited matters.  Those matters can be summarised as follows.

The WSF is a listed threatened species in the vulnerable category under the EPBC Act.

MZ-2 and MZ-4 represent the highest quality area for the WSF species, with A/Prof Wardell-Johnson considering that these management zones represent the areas of highest quality breeding habitat for the species within the broader Site and Mr Warren also considering it likely that the WSF breeds in these habitats (although not elsewhere on the Site).

*     Mr Warren agreed with A/Prof Wardell-Johnson that it is not just the breeding habitat that is important, they also need to disperse.  However, Mr Warren stated that the area in the eastern part of MZ-2 sufficiently provides for this.

A/Prof Wardell-Johnson, Mr Robertson and Mr Warren agree that the WSF’s would also utilise the areas were they to regenerate with the cessation of slashing.

It is unknown as to whether slashing would be discontinued if there was no residential development approved for the Site.

495 The experts were also agreed on the following matters.

The way in which a male WSF “calls” to attract a female to breed (and warn off other males) is generally by sitting on a sedge at some height above the ground, or otherwise from the edge of the water.

The WSF restricts itself to a particular location but can become “highly mobile” at specific times (such as after large rainfall).

With respect to pests, cane toads are, or are likely to be, already present on the Land.

496 Counsel for the applicant took the experts to a draft document titled “draft referral guidelines for the vulnerable wallum sedge frog, Litoria olongburensis”.  I note at the outset that this document states that it “is valid as at 9 September 2011”, some 14 years prior to this proceeding being heard.  As Mr Robertson indicated, it is telling that this document only ever remained a draft.  In the circumstances, I consider that I cannot give the document any real weight, absent corroborative evidence by the experts.

497 I otherwise note that the experts also agreed with the following propositions in the draft referral guidelines:

(1)     “the recording of a single wallum sedge frog during a survey of suitable habitat for the species … would sufficiently indicate the presence of a population”;

(2)    “the Wallum sedge frog is highly restricted in terms of its habitat requirements: populations and suitable habitats are extensively isolated across the species’ distribution” (with Mr Robertson pointing by example to the distance between Woolgoolga and Caloundra); and

(3)    “A population may persist in a degraded habitat indefinitely if: (a) the extent, condition and ecological function of the habitat is retained and not directly altered by human activity; (b) the habitat is resilient to existing levels of disturbance and/or is sufficiently recoverable to the extent that it enables the population to persist; and (c) the potential for the influx of WSF to the population persists.”

498 However, as I later find, I do consider that these propositions take the applicant’s case any further as the propositions were put the experts in the abstract and not so as to relate in any concrete way to the Development.  As I also later find, the draft referral guidelines for the WSF were prepared for the Commonwealth Department of the Environment to assist persons in determining whether to make a referral under the EPBC Act, but were never finalised.  As a result, I have significant reservations otherwise about the draft referral guidelines, as I later explain.

9.5    Key topics in issue on the evidence

499 The parties helpfully agreed on a list of topics in issue in relation to the WSF evidence, being:

(1)    Topic 1: The WSF habitat on and surrounding the Site;

(2)    Topic 2: Whether the WSF on the site is an important population;

(3)    Topic 3: Water;

(4)    Topic 4: Invasive species;

(5)    Topic 5: Survival recovery of the species; and

(6)    Topic 6: The impact of slashing on WSF habitat.

500 I deal with the evidence on each of these topics in turn.

9.5.1    Topic 1:  WSF Habitat on and surrounding the Site

9.5.1.1    Plant community types – a starting point

501 In his expert report dated 12 September 2024, Mr Warren identified on a map the areas which he considers are “critical to WSF survival” on or near the Site.  In this map, the critical area he says (where “PCT” means plant community type):

includes areas of PCT 3961 - Coast Sands Lepironia Sedgeland, PCT 3988 - Far North Mesophyll Paperbark Swamp Forest, PCT 3989 - Far North Paperbark Fern Swamp Forest, PCT 3990 - Far North Paperbark Gahnia Swamp Forest and PCT 4008 - Northern Sands Swamp Mahogany Shrubby Rush Forest.

502 Annexure 14 of Mr Warren’s expert report contains a map prepared by the NSW government setting out areas that are “most likely to contain core WSF habitat”.   Each colour on the map (yellow, green, blue, purple and pink) represents a different PCT.  A “zoomed in” version of the map was tendered during trial so as to focus on the Site itself.  That map is reproduced below.

503 The blue areas are PCT 3989 (ie Far North Paperbark Fern Swamp Forest), some of which is located within the boundaries of the Site.  The pink areas are PCT 4008, being Northern Sands Swamp Mahogany Shrubby Rush Forest, and the green areas are PCT 3988 being Far North Mesophyll Paperbark Swamp Forest.

504 Mr Robertson considered that, due to the “niche” nature of the WSF habitat requirements (particularly for WSF breeding habitat), the use of PCTs is inappropriate because vegetation composition is only one of many habitat criteria required by the WSF.  However, while A/Prof Wardell-Johnson agreed WSF habitat has niche requirements, he considered that PCT mapping is a good starting point from which to undertake a survey of the area for WSF habitat – a view with which Mr Robertson appeared to agree and which I accept.

505 Mr Warren deposed that, in relation to the blue markings to the south of the Site boundary, he had been through that area, and in his view, there is no WSF habitat in that area.  Mr Warren was of the same view with respect to the purple markings.

9.5.1.2    WSF habitat in MZ-2

506 As earlier explained, the parties were agreed that MZ-2 and MZ-4 represent the highest quality area for the WSF species, including breeding habitat.

507 The experts agreed that the following map depicts the WSF habitat and that the light blue shaded area in MZ-2 on the map is not breeding habitat.  The darker blue shading (which sits within the lighter blue shading) is indicative of likely Wallum Froglet habitat. However, Mr Robertson and Mr Warren agreed that the WSF habitat, however, would be “even smaller” than the area shown in the map and more focused to the southern part of the dark blue because the detections recorded to the north and far west of MZ-2 were audible detections, as opposed to direct sightings.  While A/Prof Wardell-Johnson agreed that WSF habitat lay within the darker cross-hatched area, he was uncertain absent a return to the Site:

508 Mr Robertson considered (and I accept) that the question of habitat requires consideration of the WSF’s different life cycles and behaviours.  In his view that the best quality habitat is in the eastern portion of the Site where there are “depressed landscapes that hold water, tannin stained water, acidic water, with the addition of emergent aquatic vegetation”.

509 In January 2023, detections and sightings of the WSF were recorded in the eastern side of the Development Zone.  Those detections and sightings were recorded on a map (marked by blue dots), which is reproduced below.

510 The legend on the left indicates that:

(1)    “WSF-SGT” indicates that there has been a WSF sighting; and

(2)    “WSF-DTN” indicates that there has been a WSF detection, that is, a WSF was detected aurally through the WSF calls (the locations of these calls being the subject of lay evidence).

511 It follows by reference to the map that:

(1)    there have been only two WSF sightings, being JB23 and JB28; and

(2)    there have been 11 WSF aural detections, being JB 21, JB 22, JB 24, JB 25, JB 26, JB 27, JB 29, JB 30, BC 1, BC 2 and APM 3.

512 A/Prof Wardell-Johnson disagreed with Mr Robertson and Mr Warren that the fact that the map records detections only of WSF in the northern and western areas of MZ-2 support the view that WSF habitat is contained further south.  In A/Prof Wardell-Johnson’s opinion, the callings detected in the northern and western areas of MZ-2 were “presumably within 5 metres” of the person recording the calling on (what he assumed) was a phone and thus demonstrate that WSF habitat is contained within those areas as well.   However, with respect, A/Prof Wardell-Johnson’s evidence on this issue was speculative.

513 As the land slopes downwards in the eastern direction towards Simpsons Creek about five metres east or so from the road (marked as road 2), it follows that the WSF detections were at the top of a slope which leads up to the road.  I accept Mr Warren’s evidence that the location of the WSF detections in the western area of MZ-2 near the road is not breeding habitat even though WSF habitat lies about 30 metres east from the detections.  This is because the frogs were detected on the side of the slope in rocky terrain where there is no ponding water.  I accept Mr Warren’s view that the detections at the top of the slope are therefore explained by the fact that they were also made following a lot of rainfall, during which time WSF will disperse.  For instance, Mr Warren has found WSF “on the top of hills” after three days of rain.

514 A/Prof Wardell-Johnson was of the view that the habitat that is most used as a breeding site is on the eastern edge of the Development Footprint, adjacent to a planned road.  He also considered that the slashed area would have been good habitat in the past.  However, in his view this area is now compromised through flattening and scraping as a result of which it “is now more available as a foraging and dispersal habitat, but it’s still an important habitat for the species.  And should slashing cease, then, in time, it would become much more suitable as a breeding habitat, in my view.”  I consider the question of habitat in the slashed area later.

9.5.1.3    Is there potential WSF breeding habitat within the Development Footprint (Associate Professor Newell’s photographs)

515 In March 2025, A/Prof Newell visited the Site and observed and photographed what he considered to be ephemeral wetlands within the recovered heathland in the Development Footprint.  In A/Prof Newell’s view, these wetlands constitute potential WSF breeding habitat although, as the applicant accepts, there has been no evidence yet of recolonisation.  A/Prof Newell deposed in his report:

The two locality records for the Wallum Sedge Frog fall just outside of the proposed Slashing Zone (Figure 1.3) and are likely to be breeding sites.  Whilst there is no evidence of breeding in the form of successful larval recruitment at these previously documented locations (that I know of), the presence of calling males is considered an attempt at breeding.

There are additional areas within the proposed Slashing Zone that also constitute potential breeding habitat (Figure 1.2 plates 14-17) and importantly the proposed Slashing Zone provides connectivity to the two known breeding sites adjoining the proposed Slashing Zone.  The proposed Slashing Zone would be occasionally occupied by the WSF as they disperse between breeding sites.

516 Reproduced below is Plate 14 referred to in the above extract:

517 The applicant contends that the photographs demonstrate an “undeniable presence of inundated wetlands in the recovering heathland”.  I do not accept this submission for several reasons.

518 First, as the respondents contend, A/Prof Newell accepted that the photographs had been taken in the aftermath of ex-Tropical Cyclone Alfred, which he accepted was a “significant weather event” with “significant rainfall”.

519 Secondly, I agree with the respondents that images of ponded water are not of themselves indicative of WSF breeding habitat.  As Mr Robertson deposed:

DR ROBERTSON:  In plate 9, I see and some sedges and rushes and ponded water.  I don’t know how deep that water is. I don’t know if that water is accessing the groundwater table.  I don’t know the acidity of the water. I don’t know the depth of the water.

…

DR ROBERTSON:  In regards to the hundred to 150 years comment, it is to replicate those groundwater windows, so groundwater-fed water bodies.  I don’t – I don’t know for sure what I’m looking at, but I don’t see any significant changes in microtopography that accesses the groundwater in what I’m seeing.

MR KORMAN:  So your view – and the same with 13, 14 and 15, your view is still that the ground is too flat to be able to collect water. Is that your view?

DR ROBERTSON:  Well, I don’t actually see anything in the photos that shows me the topography of the land.

520 I agree with the respondents that the photographs taken by A/Prof Newell are not helpful in circumstances where A/Prof Newell has not provided any detail in respect of, for example, the depth of the ponded water, its acidity, topography of the land or the length of time the water had or would remain ponded relative to the time required for the WSF to breed successfully.

521 Thirdly, as previously mentioned, these photographs were taken after heavy rainfall associated with a cyclone.  As the respondents argue, I cannot assess whether the Development Footprint will regenerate into WSF breeding habitat based on the presence of ephemeral wetlands after a significant weather event.  As the respondents assert, and as I have explained at length above, the WSF requires nutrient-poor, acidic water that persists for a hydroperiod of approximately six to eight weeks to allow for the WSF breeding cycle to occur.

522 Finally, the applicant has mischaracterised Mr Robertson’s evidence in relation to the time in which it would take for groundwater to collect in a “groundwater window”.  The applicant labelled Mr Robertson’s opinion a “recent invention”.  However, this is far from accurate.  Mr Robertson’s evidence was as follows.

MR KORMAN:  No, no, I’m asking if you’re looking at 13, 14 and 15, is it still your view that water could not collect on this land?  Is that your view?

DR ROBERTSON:  I don’t think it was of my view that water can’t collect on the land.

MR KORMAN:  All right.

DR ROBERTSON:  It’s that it wouldn’t collect for a sufficient enough time for the wallum sedge frog to breed.

MR KORMAN:  So your estimate, let’s say now, two years – I think we were told that slashing stopped in 2023, January, – you believe that the land is still too flat to be able to – for water to collect for long enough?

DR ROBERTSON:  For those established groundwater windows to be present, yes, I believe the land is still too flat.

MR KORMAN:  And do you believe that the wallum sedge frog will not breed unless those groundwater windows are present?

DR ROBERTSON:  That’s my understanding of the biology, particularly on this site, of the wallum sedge frog, yes.

523 Thus, as the respondents assert, Mr Robertson’s evidence was clearly directed towards the question of whether water would collect for a sufficient amount of time for the WSF to breed (being, as I explained above, the hydroperiod which the expert evidence demonstrates lasts between approximately six to eight weeks).

9.5.1.4    The slashed areas in the Development Footprint afford a temporary opportunity for WSF dispersal

524 A/Prof Wardell-Johnson considered that the slashed area in the Development Footprint would have been good habitat in the past.  However, in his view this area is now compromised through flattening and scraping as a result of which it “is now more available as a foraging and dispersal habitat, but it’s still an important habitat for the species.  And should slashing cease, then, in time, it would become much more suitable as a breeding habitat, in my view.”

525 I accept Mr Robertson’s opinion that the slashed areas could, under ideal conditions, “temporarily” provide the opportunity for the WSF dispersal, but would otherwise provide little to no habitat for the WSF.  This is because the slashing area does not contain the necessary aquatic vegetation or micro relief to hold acidic watering holes.  As Mr Robertson explained:

In relation to the development footprint and slashed areas, … the biology of these frogs is that they are a boom and bust species.  So in ideal conditions and – you know, high rainfall essentially, the … species does extend beyond those … core habitats for the purpose of moving through the landscape, finding new habitats, potentially finding a mate or whatever it might be.  So the slashed areas of the site could temporarily, under ideal conditions, provide the opportunity for that dispersal, but, besides that, provide little to no habitat for the species.  That doesn’t have the necessary floristic composition.  It doesn’t have that emergent aquatic vegetation that … the species relies on, and doesn’t have the appropriate micro relief in the landscape to hold those tannin stained and acidic watering holes.

526 Mr Robertson’s evidence accords with the advice in the WSF national recovery plan outlined above as to habitat requirements and should be accepted for the reasons which he gives.

527 Finally, the applicant contends that the experts agreed that, if the slashing was to cease, the slashed heath would regenerate quite readily.  This is not an accurate statement of the evidence.  To the contrary, Mr Robertson was of the view that slashing makes environments “more diverse” because “nothing outcompetes” everything else and, while it would restore, the question is whether it would restore to its previous state.

9.5.2    Topic 2:  WSF population

9.5.2.1    Surveys of WSF

528 Surveys have been conducted on the Site directed towards the WSF in 1996, 2003, 2004, 2008 and 2009.  A/Prof Wardell-Johnson is critical of those surveys.  In his opinion, the survey methodologies were not adequate, and “more effort could be made, particularly in relation to the sites around the current development application”, such as the area to the south.

529 I accept, however, Mr Robertson’s evidence that the surveys were undertaken in accordance with current guidelines.  As Mr Robertson opined, “there is a level of strength in a true negative of those pieces of data”.  Mr Robertson referred to a case study taking place as part of the approval conditions of hosting a festival at Bluesfest.  In particular, they were to conduct long-term monitoring project of various threatened species.  Mr Robertson deposed that, to his knowledge, that monitoring has been undertaken consistently every year for about 10 years.  While wallum froglets are frequently sited each year as part of that study, Mr Robertson deposed that it was not until 2023 that they first detected a WSF.  When asked whether this changes his view on the surveys conducted, A/Prof Wardell-Johnson maintained that there remained some doubt, given there is good WSF habitat in MZ-2 and MZ-4.

530 In any event, the high-level criticism by A/Prof Wardell-Johnson of prior surveys takes the matter no further.  It is yet another instance where the applicant has sought to identify an alleged deficiency in survey evidence without seeking to prove or explain how that deficiency may be relevant to their case that the Development will have a significant adverse impact on the species.  In effect, their case seems to start from the assumption that there will be a significant impact, which the respondents must (by impermissibly reversing the onus) disprove.

9.5.2.2    Tyagarah Nature Reserve population

531 The MNES Guidelines provide guidance in determining whether a population is an important population:

An ‘important population’ is a population that is necessary for a species’ long-term survival and recovery.

This may include populations identified as such in recovery plans, and/or that are:

* Key source populations either for breeding or dispersal

* Populations that are necessary for maintaining genetic diversity, and/or

* Populations that are near the limit of the species range

532 The experts agree that the WSF population on the Tyagarah Nature Reserve is an important population.  This is so even though Mr Robertson gave evidence that he had applied the flexibility in the MNES Guidelines “in assuming that the Tyagarah Nature Reserve is an important population, because it is far smaller than all of the listed important populations within the recovery plan.”  Those populations were, by contrast, in the “10s of thousands of hectares”.

533 First, in Mr Robertson’s opinion, considered that Tyagarah Nature Reserve is a source population, being one from which the species would spread out under ideal short-term and long-term conditions.  He considers that the Tyagarah Nature Reserve population spread out into the far west and far east portions of the management zones and that the WSF in the Site form part of the Tyagarah Reserve population.  The WSF’s presence on the Site, in Mr Robertson’s view, arose due to the change in climatic conditions (ie to wetter conditions).  Mr Robertson opines that a population as small as that on the Site may retreat.  In this regard, he considers that the WSF population on the site will stay relatively dormant until favourable conditions arise and they can move across the landscape again.

534 Mr Robertson considers that the important population is confined to the Tyagarah Nature Reserve population.  In his view, Simpsons Creek forms a barrier (unless there has been a flooding event) between the Tyagarah Nature Reserve population and the population on the Site.

535 Mr Warren and A/Prof Wardell-Johnson agreed that the WSF population on the Site comes from the Tyagarah Nature Reserve’s important population.

536 In common with Mr Robertson, Mr Warren considered that the WSF population on the Site is not in of itself an important population and that the WSF on the Site are part of the Tyagarah Reserve population.  Mr Warren explained that the area to be developed is approximately equal to 10 ha, as opposed to the total area of the adjoining Tyagarah Nature Reserve which is approximately 875 ha., Mr Warren describes this as “an order of magnitude” of approximately 2.  Mr Warren explained that, if you then look at the area of the WSF habitat on the Site, MZ-2 is approximately ½ ha and MZ-4 is 1-2 ha.  The WSF breeding habitat is approximately 238 ha of that 875 ha from the Tyagarah Reserve.  Mr Warren explained that he had caused someone to calculate this from a plan in his expert report.  Again, if you look at order of magnitudes, Mr Warren explains, it comes to about 2 orders of magnitude.  Mr Warren opined that the loss of a colony, when considered in light of the Tyagarah population that are not genetically different, is not a significant impact.

537 Mr Warren went on to state that the WSF on the Site are 2 orders of magnitude less than the Tyagarah Reserve.  Mr Warren thus says he has “no choice” but to conclude that the impacts on the population in the Site cannot be significant.   Mr Warren refers to the criteria in the MNES Guidelines which, in his opinion, the WSF on the Site do not meet.

9.5.3    Topic 3:  Water

9.5.3.1    Surface Water and Groundwater MP baseline data for action criteria

538 Counsel for the applicant took the WSF experts to the following table contained in the Surface and Groundwater MP setting out the chemical analysis of samples of surface water taken from six different locations, SW01 to SW06, in 2021 to 2022.  The purpose was to provide a baseline data set to determine action criteria for a range of analyses at each of the surface water monitoring locations.

539 Surface watering monitoring locations SW01, SW02 and SW03 are located within the project site, while SW006 is upstream of the site, and SW004 and SW005 are downstream.  The Surface Water and Groundwater MP explains that the different values adopted for each monitoring site reflect the spatial variability of surface water quality across the Site, that is:  Lowland river (SW01, SW02, SW03 and SW06); and Estuarine (SW04 and SW05).

540 The Surface Water and Groundwater MP records (under the heading “Setting Action Criteria for Surface Water Quality”) that:

The baseline data set show the surface water quality is relatively poor with recorded concentrations generally exceeding default ANZECC (2000) trigger values.  Current (pre-development) water quality is affected by historic land use including agricultural clearing, drain formation and urban development upstream.  The aim of the proposed action criteria is to maintain the surfaced water quality within the range of exiting variations established during the baseline monitoring and characterisation.

541 With respect to the expert evidence regarding the report, first Dr Robertson disagreed with the proposition that the table does not provide any guidance as to whether appropriate nutrient levels are being exceeded, explaining that:

The location of these surface water quality points is based on the existing baseline work that was done.  So these triggers here are more at a 80th percentile value of the baseline work that was done. … it’s actually monitoring the NorBE principle that we are maintaining current values or better, not specifically monitoring the water quality within the ponds or very, very close to the ponds.

542 Secondly, with respect to the column titled “SW05” in the table shows TN as 0.94 mg/L, the applicant’s counsel asked the experts whether, if stormwater containing more TN than that amount was to reach WSF habitat, it would cause a risk to nutrients.  Mr Warren considered this was “likely” but explained that the ANZECC standards are guidelines only.  In any event, I accept Mr Robertson’s evidence that SW05 is an estuarine point (as is apparent from the management plan itself) and entirely inappropriate as it is not WSF habitat (which the evidence has unequivocally established).

543 Thirdly, all of the experts accepted that the Storm Water and Groundwater MP showed that the study had demonstrated that background levels of TN, both in surface water and groundwater, were already elevated above the ANZECC guidelines for lowland rivers.  They also agreed that:

(1)    the Storm Water and Groundwater MP gave a clear explanation of the way that the selected action criteria have been determined;

(2)    the numerous tables in appendix A about groundwater quality and appendix B about surface water quality reflect a detailed consideration of each of the relevant parameters including total nitrogen and total phosphorus for mean conditions, median conditions, the 20th percentile and the 80th percentile;

(3)    that this provides a comprehensive, sitewide picture of the expected effect of the development and the default trigger values that apply for surface water and groundwater at each of the sampling locations.

9.5.3.2    Impact of elevated nutrient levels in stormwater on frog habitat

544 The experts were also cross-examined by the applicant about the impact on the quality of frog habitat if stormwater runoff containing 50% more nutrients than the background level.

545 A/Prof Wardell-Johnson was of the view that this would be a trigger and, while his evidence was somewhat confusing, he seemed to consider that it might lead to some of the 36 artificial ponds to fail, with those ponds becoming “more suitable for other species” and attracting other predated species, such as the cane toads.

546 While Mr Warren did not consider that he had the expertise to comment on how much the WSF can tolerate in those levels varying, he considered that the literature showed that adaptations to variable hydroperiods exhibited by the WSF may help it adapt more quickly, particularly during climate change.  He also considered that the data supports the conservation action of preserving a wide variety of wetland hydroperiods within a landscape.  In other words, having a variety of ponds in slightly different locations – with each one having different hydroperiods – is a positive thing.  I accept this evidence, which reflects a fundamental design feature of the artificial ponds established on the Site and is one of the factors which persuaded me that the artificial ponds have very good chances of success in the context of considering the hydrological and hydrogeological evidence:  see further at Part 8.6.4 above.

547 I also accept Mr Robertson’s view that it is not simply a question of monitoring the levels of the water nutrients.  This is because nutrient levels are one of many factors, as is reflected in the Wallum Froglet MP.  If, for instance, SW05 has raised levels, Mr Robertson explained this is data one would consider along with a number of pieces of information.  One would look at the data collected from all those characteristics and build the scenario from there.  He went on to elaborate that:

Levels go up, but they quickly come back down within a week.  That wouldn’t be cause for concern or trigger.  It might trigger one of those things to go above the … trigger point, but if it hasn’t affected all of the other critical things, it was just a temporary moment in time, it wouldn’t be cause for concern, or to change our actions or something similar.

548 As Mr Robertson further explained:

You’ve got to remember – and I will refer back to the discussions that the hydrologists had.  Each one of those ponds … may all exist in a very different manner.  They may be on those perched environments.  They may be above coffee rock.  They may be very … dependent on the rise and fall of the groundwater.  So there’s not a direct cause and effect, if that makes sense. It’s not going to be the same for every pond. It’s not going to be the same for every location.  It is very dynamic across the site.

(Emphasis added.)

9.5.3.3    Swales

549 The applicant also put to the respondents’ experts when the monitoring period for the project is completed, in the event that the swales were not maintained, there was sediment and they were not performing their function, that there would likely be a deterioration in the wetlands and artificial frog ponds in MZ-2 and MZ-4.

550 The line of questioning was, with respect, unhelpful, being based upon a string of hypotheticals and assumptions, as Mr Robertson pointed out, and ignoring the detailed and comprehensive suite of obligations under the Consent, the Construction Environmental MP, the Vegetation MP, and the Wallum Froglet MP.  As Mr Warren explained, from a realistic point of view, the monitoring program runs for five years after completion and, during that period, any deterioration in the functioning of the ponds would be detected and actioned.  He also considered that if the swales were functioning properly for five years, this was an indication that they would last for a very long time.   Otherwise, as Mr Warren explains, the developer is required to maintain ownership until it is fixed as the Council will not accept a transfer of the swales if the KPI’s have not been met.  Mr Warren only accepted, in a “very hypothetical” scenario, that if the swales were not functioning, “it would be a disaster for the frogs”.  Similarly, Mr Robertson accepted that if there was the worst-case scenario, it would be detrimental to the frogs in MZ-2 and MZ-4, but the impact on the overall population would be minute.  That is plainly so for the reason, among others, that the applicant has not established that this is an important population (as I later explain).

9.5.3.4    Artificial ponds and water quality

551 In line with the evidence of the hydrology and hydrogeology experts that it is the interaction of surface water and groundwater that is more important than surface water controls in the design of the artificial ponds, the WSF experts agreed that the ponds will have two regular water sources: groundwater and rainwater.  As Mr Warren explained, the ponds are:

not reliant on stormwater discharge or groundwater associated with the development.  They are mainly reliant on rainfall.  You know, because there’s no overland flows on the site, virtually the site is reasonably flat, but rainwater is particularly important with that – with the MZ2 and MZ4 habitats.

552 Further, Mr Robertson opined that, while groundwater is ideal, it is not the only role for success.

553 Counsel for the applicant took the experts to the Wallum Froglet MP section 2.2 titled “Groundwater considerations”.  Counsel asked, if the groundwater was shown to have average TN levels between 2-7 times higher than the naturally occurring TN levels or nutrients twice above the background level, is it most unlikely that the ponds would provide a successful environment for the WSF.  Mr Warren and A/Prof Wardell-Johnson considered that, hypothetically, this would be a problem.  I accept this evidence, but absent the applicant establishing the premise for the question, it takes the matter no further.  Similarly, Mr Robertson took issue with the premise that it sufficed to consider one factor in isolation in determining impacts on the environment for the WSF, pointing out (understandably) that:

one of the challenges that we’re having in answering the questions is that we’re trying to draw a very direct correlation to something that isn’t just a unilateral thing.  There are lots and lots of factors involved here, and we’re simply trying to say, “Will this one specific factor cause this one specific outcome?”, which is a very hard thing to conceptualise with the amount of complexity that’s going on.

554 Finally, Mr Robertson considered (and I accept) that elevated nutrient levels would be a cause to conduct further investigation, as there are biological processes to remove these nutrients.

9.5.4    Topic 4:  Invasive species

9.5.4.1    Cane toads

555 All experts agreed that cane toads are, or are likely to be, already present on the Land.

556 As to whether the Development will enhance access for cane toads to WSF habitats, A/Prof Wardell-Johnson expressed the view, without elaboration, that cleared areas would provide increased access for cane toads, but that the real issue is the interaction of the access.  I do not consider that this evidence takes the matter any further.

557 I prefer the evidence of Mr Robertson and Mr Warren.  Mr Robertson said that access to the poor-quality habitats would be increased, but that it would decrease in relation to the good quality habitats in MZ-2 and MZ-4.  He considered that this is particularly so with respect to MZ-2 which currently contains a lot of pathways that would provide current access for cane toads but are to be ripped and re-vegetated as part of the Development. It will be recalled that I have already found that, under the management plans, multiple existing tracks are to be ripped and revegetated and a single walking track for access to Simpsons Creek is to be created.

558 Mr Warren was taken to his expert report during cross-examination where he stated that “slashing activities will make access, to retained habitats, by invasive animal species e.g. cane toads and foxes, easier”.  Mr Warren explained during cross-examination that cane toads are large and cumbersome and will take the easier track, as will foxes.  However, he did not accept that the footpath to the south of MZ-2 would enhance access for the cane toads, even though he considered that they would not hinder their access to the management zones. In Mr Warren’s view, the roadways through the Site would provide easier access to areas to the south for the cane toad.  Importantly, however, Mr Warren did not consider that it would establish a greater presence of the cane toad, which is already on the site.  Mr Warren went on to explain his position as follows:

MR WARREN:  Well, the cane toads are already onsite.  And, as I said, the cane … the wallum sedge frogs are happy.  You know, they’re breeding.  I … don’t see that the cane toad has caused a major problem.

MR KORMAN:  And why, in your view, would this enhanced access not create an enhanced likelihood of invasion by cane toads?

MR WARREN:  Because if you look at page 4, look at all those tracks there … in the south east corner of the property in the aerial photograph.  I mean, it’s … a potential cane toad highway – highways through there…

MR KORMAN:  So in your view, the – looking at the property as a whole – well, we will start off with the south east portion.  In your view – in the south east portion, your view is that the cane toads would not have enhanced access as against the current circumstance?

…

MR WARREN: No.  They’ve already got great access, if they want it.

559 As to the path being constructed along the southern boundary between the central drain and MZ-4, Mr Warren was of the view that this path would enhance access for the cane toad and foxes.   However, as to road 7 on MZ-4 on the west of the property, Mr Warren did not consider that this would enhance access for cane toads “because that part of the development is slashed… So cane toads have got access now.”

560 During cross-examination, counsel for the respondents asked A/Prof Wardell-Johnson whether he agrees with Mr Robertson’s opinion that opportunities for access to the areas MZ-2 and MZ-4 will decrease if the proposed development goes ahead as compared to the existing situation.  A/Prof Wardell-Johnson disagreed, stating that the new tracks will be “much more open, wider” and “include water quite frequently”.  Counsel for the respondents took A/Prof Wardell-Johnson to the map depicting the swale on the eastern edge of road 2, which will operate as a restriction to access.  In this regard, A/Prof Wardell-Johnson opined that, whether the swale acts as an effective barrier to cane toads, depends on how effective the planting is and that “there are lots of hypotheticals”.  The existence of “hypotheticals” does not, however, say anything about whether or not any of the hypotheticals are likely to happen and does not therefore establish that the plantings will not be effective, especially in the context of the comprehensive regime for monitoring and trigger actions established by the Consent and associated documents.

561 A/Prof Wardell-Johnson was then taken to the landscape plans which contains a table titled “Bio Retention Planting Planting Zone” that lists the various plants to be planted.

562 One can see at the bottom of the table a statement that “distribution of plants should [be] in clumps of 5-10 plants of the same species to ensure propagation can readily occur”.  For each of the species listed the density is eight plants per square metre.  A/Prof Wardell-Johnson accepted that the plan shows a “very dense planting”, but that, initially, it is “not a full cover” and during that period would be “an open area for a cane toad initially”.  However, despite being concerned about the initial period prior to the planting, A/Prof Wardell-Johnson deposed that when he visited the site, he only saw one cane toad over a three-day period (totalling approximately six hours over three days).  A/Prof Wardell-Johnson described his visit to the Site as follows:

…during the three days, I spent three hours during the day with Dave Milledge and Dave Newell visiting the FoR area of their development proposal. And then the next day – I think it was in the night, so that was probably the 8th.  I think it was the 7th we spent walking around.  And the 8th, we went out at night for one and a half hours.  And then just myself went out for one and a half hours on the morning of the 9th.  But during those three days, I also walked the area along the edge of Simpsons Creek, which is part of the proposed, what’s called the “conservation area”, as well as walking the streets in the area of the development, and in the area around Brunswick Heads.  Particularly, the edges of the bushland.  So the roads adjacent to bushland.  So that was the entirety of my visit.

563 A/Prof Wardell-Johnson also accepted that the vegetation to be planted for the bioretention planting zones would act as an effective denial of access to cane toads.  However, A/Prof Wardell-Johnson opined that, if there were bare areas within that ponded area, then the cane toads would find it, and he would expect cane toads to access the area.  Again, this is posited merely as a hypothetical.

564 Mr Warren understandably opined that A/Prof Wardell-Johnson’s view paints a “dire picture for the cane toad” and the cane toad activities on the Site. Importantly, Mr Warren considered that, if the cane toads were going to cause a problem to the WSF in MZ-2 or MZ-4, then they would already have done so in circumstances where there is currently no dense vegetation around those areas presently and cane toads have not caused a problem to date.  So much is, respectfully, common sense.  Thus, Mr Warren gave evidence, and I agree, that after the dense plantings around those areas, it is simply non-sensical that cane toads will suddenly cause a problem.  Nor did Mr Warren accept that there will be bare areas for the cane toads to run around in.  Indeed, Mr Warren would be “highly surprised” if cane toads caused a problem.  Mr Robertson endorsed Mr Warren’s opinion in this regard.  I agree with Mr Warren’s views on this point.  Given this evidence and my findings at Part 5.7 above, it follows that the applicant has failed to establish that the Development will enhance access for cane toads to access the management zones or increase the cane toads’ presence in those zones.  Any such proposition is ultimately speculative, without any proper grounding in the evidence.

9.5.4.2    Weeds

565 Mr Warren was of the opinion in his expert report that the likelihood of weeds spreading is very low because the Wallum soils are nutrient poor.  Mr Warren deposed during cross-examination that, whether weeds spread on the outer edges of the Development will depend on the type of fill material used. Mr Robertson held a similar view to Mr Warren, deposing that the oligotrophic environment does not lend itself to the invasion of typical weed species.  Further, Mr Robertson was of the view that there is currently “very low weed spread”, which he attributes to that oligotrophic environment as well as the structure of the vegetation.  Mr Robertson also explained that the landscaping and density plans create environments that are very resilient to weed invasion.

566 A/Prof Wardell-Johnson was to some degree in agreement with Mr Warren and Mr Robertson. In particular, he agreed with the statement in section 3.8 of the Vegetation MP that “vegetation at the site is generally in excellent condition, showing high resilience and weeds occur at very low incidences” and that “this is primarily due to the sites occurrence on low fertility soils which do not provide suitable conditions for broadscale establishment of common woody weeds…”.  However, he was of the view that, while weed invasion may not happen immediately, it is an “inevitable consequence” of additional nutrients being introduced into the edges from various sources, such as gardens, dogs and changes to the hydrological nature of the Site. In particular, he was concerned that the influx of nutrients post-development will introduce a range of invasive species, such as the camphor laurel, privet, lantana and umbrella tree.

567 It will be recalled that there are extensive obligations under the management plans to manage the risks associated with adverse impacts of this kind.  However, A/Prof Wardell-Johnson took issue with the management plans, initially describing them as “a hope” but “not something that can be achieved because you are dealing with people”.  When pressed, however, he accepted that to describe them as “a hope” was an overstatement and that they were backed by legal obligations.  Nonetheless, he considered that “they are a means, they are a plan and they are a plan to implement a project and the plan is seeking to prevent impacts or limit impacts if they can’t be prevented or ameliorate impacts if they occur despite the best intentions.”

568 I do not accept A/Prof Wardell-Johnson’s scepticism, which dramatically understates the significance of the management plans, which directly address the issue of weed control as earlier explained, and is based upon speculation. Rather, as Mr Warren deposed:

… I think … the associate professor is … doing a chicken little, if … I can do that; the sky is going to fall in.  But – and he described the areas as being a typical subtropical-type area where weeds are a problem, and that’s true to a certain extent.  But we’re … talking about … a special place, a special type of habitat.  One where the soils don’t have nutrients.  Most subtropical soils are nutritious – the red soils, the ferrosols and so on – but not these soils.  They don’t have the nutrients in them.

If there was going to be a weed problem, there is already an existing development to the north of the wallum estate and, sure, there’s some weeds around the margins; one would expect that because of the fill overflow from that development.  Weeds would be a problem on this site as a result of that earlier development – the 1980s, or whenever it started.  One would expect that weeds would have spread throughout this site, the wallum estate, … if they could.  But they aren’t there.  And the reason they’re not there is because the soils don’t have the nutrients in them to support weed populations.  Why is that going to change?  All of a sudden, you do this extension to that development; …why is it going to change?

9.6    Topic 5:  Interference with recovery

569 A/Prof Wardell-Johnson deposed that, in his view, the Development is “very likely to be highly negative” to the general survival of the WSF species on the site and its recovery.  Further, he considered that the Development has a negative impact on the recovery of the WSF species.

570 Mr Warren and Mr Robertson disagreed.

571 First, Mr Warren referred to the national recovery plan for the WSF setting out actions needed for recovery of the wallum-dependent species.  Those actions include the following:

(1)    identify and assess the essential habitat;

(2)    protect the wallum frog populations and manage the habitat;

(3)    acquire information on threats to inform management; and

(4)    monitor frog numbers and distribution.

572 Mr Warren considered that each of these actions had been undertaken, explaining further with respect to the second, that it had been met by conservation of the breeding areas for the WSF on the Site and the completion of a number of management plans.  Mr Robertson agrees with Mr Warren’s opinion, except that, in Mr Robertson’s view, the slashing would degrade, but not destroy, the foraging and distribution habitat.

573 Secondly, Mr Robertson and Mr Warren considered that it is inconceivable that the Development will have any adverse effect at the species level or at the Tyagarah population level of the WSF. This is apparent when, as Mr Warren explained, the scale of the development is considered in context vis-à-vis the Tyagarah Nature Reserve:

So – because, yes, obviously, slashing wouldn’t be going on in the wet weather that frogs would be moving about.  So impact on the frogs themselves would not occur.   Slashing of 10 hectares of … land that does not have any breeding habitat on it – it has got uses as dispersal habitat and potential forage habitat.  You know, again, I … refer to, you know, the board and the … order of magnitude of loss of this particular type of habitat that the frogs might use or likely to use as dispersal habitat.  There’s a – there’s two orders of magnitude difference between the size … of the reserve compared to the loss of 10 hectares of – well, it’s – it’s dispersal habitat, but it would be better dispersal habitat … if it was allowed to regenerate, but the frogs would still use it.  You know, whether it was slashed or not slashed, they would still use it as dispersal habitat, but there’s no breeding habitat there.  So, in – in terms of assessing the impacts of slashing, you know, again, we have to look at the Significant Impact criteria 1.1 under the EPBC Act, and I’ve assessed that in my expert report – pages 17, 18 and 19 of my report. I don’t intend to go through it now.  I don’t think that serves a purpose.  It’s in the court documents, but, suffice to say that, when I looked at the Significant Impact criteria 1.1 and measured it against the – you know, what the – what the likelihood was of significance of impact, I couldn’t come up with anything that was significant, in relation to those Significant Impact criteria.

574 Thirdly, A/Prof Wardell-Johnson’s view that the development would have a significant impact on the WSF species is grounded in his acceptance of the metapopulation theory – the validity of which, for reasons later explained, I do not accept.

9.7    Topic 6:  Slashing

575 Picking upon the point immediately made, Mr Robertson emphasised that the fact that the WSF still persists within the Site despite the Site having existed for over 50 years in a slashed state is a testament to the low impact on the species of the slashing activity.  He further explained that the vegetation communities are very resilient, and that slashing makes the area more diverse because there no species that is outcompeting everything else.  Thus, in Mr Robertson’s opinion, you have “an extremely diverse layer” that, if left alone, “would undoubtedly restore”.

576 A/Prof Wardell-Johnson was of the view that the level of degradation because of prior slashing works on the Land has been “greatly overstated”, contrasting it with, for example, an extreme form of degradation where land has been paved or made into a mine.  In his view, one of the least forms of degradation is where slashing has occurred, but nutrients have not been added. I accept that evidence.  A/Prof Wardell-Johnson explains:

…what has been done here has been the scraping of the site, but that has preserved the species composition.

577 However, in A/Prof Wardell-Johnson’s view, if the slashing were to cease, there would be “a real chance” that there would be WSF breeding habitat.  In other words, while the Land has been mildly degraded because of the slashing, it has not lost its floristic composition and thus maintains all the elements to allow habitat rehabilitation were the slashing to cease.

578 On the other hand, A/Prof Wardell-Johnson opined that he would expect the cessation of slashing to lead over the medium to long term to a much more suitable WSF habitat than what presently exists.  A/Prof Wardell-Johnson estimated that restoration back to the area’s floristic composition (being what he described as the pattern of plant communities across an area) would take about 20 or 30 years.  It was put to A/Prof Wardell-Johnson that there is a large measure of speculation in the 20–30-year prediction.  A/Prof Wardell-Johnson disagreed, stating there is “better than a real chance” as it is based on ecological theory.

579 Mr Warren and Mr Robertson disagree with A/Prof Wardell-Johnson’s opinions.  They consider that it is a flat landform and thus it is not conceivable how that can then turn into breeding WSF habitat, which would require the movement of sands.  A/Prof Wardell-Johnson does not grapple with this issue and explain how the land could nonetheless become WSF breeding habitat. In those circumstances, I do not accept that the applicant has established that, if slashing were to cease, the slashed areas would more suitable WSF habitat.

9.8    Findings

9.8.1    Summary of findings

580 Having regard to the comprehensive expert evidence in relation to both hydrology and the WSF, I make the following findings of fact.

(1)    As to the WSF environment:

(a)    the WSF thrives in an oligotrophic environment, that is, wetlands that are nutrient poor: see Part 8.2;

(b)    there is a low risk only of increased nutrient levels as a consequence of the Development.  Indeed, it is more likely that nutrient levels will decrease because of the management actions to be undertaken: see Part 8.6.2;

(c)    pH changes in the soil are unlikely as a result of the Development: see Part 8.6.1; and

(d)    the bioavailable nutrient levels remain low.  The Site thus remains suitable for acid frog habitat: see Part 8.6.2; and

(e)    the groundwater is not degraded and remains suitable for the WSF: see Part 8.6.3.1.  Dr Hedjripour’s concern that there has not been any modelling that demonstrates the WSF habitat’s suitability in different climatic conditions is of a lesser concern in circumstances where the land in question is rainfall-dominated: see Part 8.6.3.2.

(2)    As to the WSF habitat:

(a)    the Development Footprint does not contain potential WSF breeding habitat: see Part 9.5.1.3;

(b)    the WSF detections in the western area of MZ-2 near the road is not WSF breeding habitat.  This is because the WSF were detected on the side of the slope in rocky terrain where there is no ponding water.  Further, these detections were made after three days of rain: see Part 9.5.1.2; and

(c)    the slashed areas on the Development Footprint could, in ideal conditions, temporarily provide the Wallum Sedge Frog with a dispersal opportunity, but would otherwise provide little to no habitat for the Wallum Sedge Frog.  This is because the slashed area does not contain the necessary aquatic vegetation or micro relief to hold acidic watering holds: see Part 9.5.1.4.

(3)    As to the WSF population (see Part 9.5.2.2):

(a)    the WSF population in the Tyagarah Nature Reserve is an important population;

(b)    the WSF population on the Land is part of the Tyagarah Nature Reserve population.  Further, the WSF population on the Land is not a genetically different population from the WSF population on the Tyagarah Nature Reserve; and

(c)    the WSF population on the Land is not an important population.

(4)    As to the WSF artificial ponds:

(a)    the design of the artificial ponds is appropriate: see Parts 8.6.4 and 9.8.5;

(b)    as this is a rain-fed system, it is the interaction of surface water and groundwater that is more important when considering the ponds’ design, rather than surface water controls: see Part 8.6.4;

(c)    what is of critical importance for the WSF is the level of bioavailable nutrients.  Those levels are low: see Part 9.8.5.2.  To the extent elevated nutrient levels are detected in the ponds, it would be a cause to conduct further investigation as there are biological processes to remove these nutrients: see Part 9.5.3.4

(d)    the artificial ponds are fit for purpose and have very good prospects of success.  The ponds will be created at different levels in the landforms, over different substrates to provide the maximum degree of difference in hydroperiods that are suitable for the WSF and wallum froglets, within a band that the engineers have set.  Placing the ponds in different locations such that each pond has a different hydroperiod (which is approximately six to eight weeks for the WSF) is a positive outcome for the WSF: see Parts 8.6.4 and 9.5.3.2;

(e)    assessing the success of an artificial pond is not simply a question of monitoring the levels of the water nutrients.  Nutrient levels are one of many factors: see Part 9.5.3.2;

(f)    there will be no change in the undeveloped areas of the Land to the natural variation of 1.5m in the groundwater level.  In other words, the effect will be neutral: see Part 8.6.4; and

(g)    there is provision for active management and monitoring of the ponds, both in the five years after occupation and also after that period: see Part 9.8.5.5.

(5)    As to invasive species:

(a)    the Development will not enhance access by the cane toad to the management zones, nor increase the cane toads’ presence in those zones: see Parts 9.5.4.1 and 9.8.6.3.1; and

(b)    the management plans impose extensive obligations to manage risks associated with weeds: see Part 9.5.4.2.

9.8.2    Is the WSF population on the Land an important population?

9.8.2.1    The issue

581 It will be recalled that the definition of “important population” in the MNES Guidelines picks up the way in which that term is used in r 7.11(1)(c) of the EPBC Regulations, namely, a population that is necessary for the long-term survival and recovery of a species. While the MNES Guidelines do not of themselves have any legal effect, they were accepted by the parties as establishing relevant criteria for assessing whether there will be a significant impact on a listed threatened species under s 18 of the EPBC Act and relied upon extensively by the parties’ experts:  see Part 3.7 above.

582 The applicant’s case with respect to the WSF population is, in summary, that:

(1)    the WSF population on the Land is an isolated (or, in the applicant’s terms, a “satellite”) population that is distinct from the Tyagarah Nature Reserve population; and

(2)    having regard to the draft referral guidelines and the metapopulation theory, it is (therefore) an important population in the relevant sense.

583 For the reasons that follow, I am not satisfied that the WSF population on the Land is an important population.

9.8.2.2    Is the WSF population on the Land a small and isolated population?

584 It is common ground that the WSF population on the Tyagarah Nature Reserve is an important population.  The first question is whether the WSF population on the Land is part of the Tyagarah Nature Reserve population, or whether it is a separate and distinct population.

585 Ultimately, I am not satisfied that the WSF population on the Land is an isolated population.  As Mr Warren opined, the direct hydrological links between the Tyagarah population and the WSF population on the Land make it evident that the WSF population on the Land is not isolated.  In this regard, while Simpsons Creek would ordinarily be a barrier between the two populations, periodic flooding would link them together.

586 Further, while A/Prof Wardell-Johnson considered that genetic evidence would be needed to have a higher degree of certainty as to whether the populations are linked, this testing has not been done and he ultimately agreed that there is “more likely than not” to be “a fair degree of continuity” between the populations.

587 However, Mr Robertson was of the opinion that he considers the chance of the WSF population on the Site being a genetically unique population to be “very remote”.  Similarly, Mr Warren was of the view that there is no chance that they are different given that they are hydrologically linked, he cannot see a scenario where they would be genetically different.  In the circumstances, the applicant has not established that the WSF population on the site is genetically different.   To the contrary, I accept Mr Robertson and Mr Warren, given that the hydrologically link between the populations.

9.8.2.3    The Draft WSF Referral Guidelines

588 The applicant seeks to rely on the WSF Draft Referral Guidelines (2011) to demonstrate that the WSF population on the Site is an important population.  In the applicant’s submission, the draft guidelines “represent a considered view” of a team of experts which included two of the authors of the WSF recovery plan.  In this regard, the applicant relies on the following statement:

The wallum sedge frog is highly restricted in terms of its habitat requirements: populations and suitable habitats are extensively isolated across the species’ distribution.   Therefore, the department considers that a large majority of wallum sedge frog populations may meet the important population criteria outlined on page 11 of EPBC Act Policy Statement 1.1 Significant Impact Guidelines – Matters of National Environmental Significance.   For example, small, isolated populations occurring along the mainland coast, and populations occurring in protected areas, may be essential for maintaining the dispersal, breeding and genetic diversity … of the species over the long term.

589 Conversely, in the applicant’s submission, the Draft Referral Guidelines note that “it is difficult to define which wallum sedge frog populations may not be important for the species’ long-term survival and recovery. A wallum sedge frog population occurring in a degraded habitat may still be considered important if it is able to persist indefinitely.” The applicant also submitted that the opinions expressed in the Draft Referral Guidelines may also be understood as a statement of the proposition underlying the metapopulation theory adopted by A/Prof Wardell-Johnson.

590 I do not consider that I can give any real weight to the statements in the Draft Referral Guidelines.  While it is true that the guidelines were drafted by a team comprising mostly of experts in the field, it is a draft that is valid as at 9 September 2011, some 14 years prior to the hearing of this proceeding.  Moreover, as Mr Robertson opined, there may well be a reason why a document was never finalised, and I certainly cannot assume that the Draft Referral Guidelines represented the views of all of the authors, let alone their final, considered views.  Rather, as I have earlier held, I give significant weight to documents such as the recovery plans, as well as to the MNES Guidelines which all experts agreed were relevant to assessing impacts on listed threatened species: see Part 3.7 above. Ultimately, the evidence with respect to the Draft Referral Guidelines rose no higher than the experts being asked whether they agree with cherry-picked statements in the draft guidelines that are at a high level of abstraction, devoid of any context relevant to the Development.

591 Furthermore, for reasons I explain below, I do not consider that the metapopulation theory assists me in determining whether there is an important population for the purposes of considering the ultimate question of whether there is a significant impact on the WSF species.

9.8.2.4    Metapopulation theory

592 The applicant argues that the WSF population on the Land, which it describes as a small, “satellite” population, is in of itself an important population due to the metapopulation theory.  This is because, in the applicant’s submission, the WSF population on the Land may, under different climatic conditions and at different points in time, be more important than the Tyagarah population.

593 This proposition is based on A/Prof Wardell-Johnson’s evidence that in his view, the loss of even a single frog at the Site impacts the potential “metapopulation dynamics across the Tyagarah area.”  He went on to state:

if there’s a … loss of frog at this site, then that impacts on the potential metapopulation dynamics across the Tyagarah area, which means that should … we don’t know which part of the population of Tyagarah is the most important for the future of the species. … It could be that the area of MZ2 is actually the most important in terms of the persistence of the species, taken from a metapopulation dynamics perspective, because things change climatically and edaphically over millennia.  And so without the presence of people, … you would expect different parts of the population to be more important at some times than in others in maintaining the … overall population.

…It’s metapopulation dynamics.  It’s theory.

594 It follows, on this theory, that small populations are equally as important as large populations. This is because, in the applicant’s submissions, “parts of a regional population will one day be subject to unknown and unknowable future vicissitudes, so that it is impossible to predict which population may temporarily disappear”.  In line with this, A/Prof Wardell-Johnson took issue with the proposition that the primary location of a particular species should be the guiding consideration for determining whether the population is an important population.  Rather, A/Prof Wardell-Johnson deposed that “under different conditions, different parts of that Tyagarah population may be more important than at other times” and that, therefore, “one should consider the overall population rather than saying that it’s either dependent or restricted or core at Tyagarah”.

595 Thus, the applicant purports to categorise the WSF population on the Land as “insurance” for the larger Tyagarah population.  In other words, if the main population is depleted “through some chance”, such as a bushfire, then the satellite population will become critical.  The applicant contends:

Once it is appreciated that because parts of a regional population of a species will one day be subject to unknown and unknowable future vicissitudes, so that it is impossible to predict which population may temporarily disappear and which will provide recruits to restore that population, it is possible to understand why the WSF Referral Guidelines state that “a large majority of wallum sedge frog populations may meet the important population criteria.”

596 However, A/Prof Wardell-Johnson accepted that he has not applied or tested this theory in relation to the Site or the Tyagarah Reserve, despite his evidence that he “base[s] [his] science on theory, in the first instance, before testing it.”

597 I do not consider that it has been shown that the validity of the theory has been established; nor that its relevance to the issues before me has been demonstrated.

598 First, A/Prof Wardell-Johnson’s explanation of how metapopulation theory might work in relation to the Land and Tyagarah Nature Reserve is put at a purely theoretical level.  He accepted that he had no data or information concerning the application of this theory to the present circumstances, as is evident in the following exchange:

MR LANCASTER:  Yes.  It’s a theory that’s not based on any data or information you have, isn’t it.

ASSOC PROF WARDELL-JOHNSON: … no.  That’s correct, either. The theory – I’ve done a lot of work on what – metapopulation dynamics.  Not of this particular species - - -

MR LANCASTER:  Or at this particular site.

ASSOC PROF WARDELL-JOHNSON:  Or of this particular site…

MR LANCASTER:  Or in the Tyagarah Nature Reserve.

ASSOC PROF WARDELL-JOHNSON:  No…

599 It follows, as the respondents submit, that whether and how the theory might apply here, if at all, is based on pure speculation.  Moreover, as the respondents submit, taken to its logical extreme, A/Prof Wardell-Johnson’s evidence would mean that every population of every vulnerable or endangered species must ipso facto be regarded as an important population because it may at some unknown point in time become important.  As the respondents point out, this outcome is not what is intended by the MNES Significant Impact Guidelines which define an “important population” as a population that is necessary for a species’ long-term survival and recovery, in line with reg 7.11(1)(c) of the EPBC Regulations.

600 Secondly, the theory is concerned with the question of whether a population may become important based on speculation about possible events.  As such, it says nothing about whether, as at the present time, I can find that a population is an important one to the species’ long-term survival.

601 Thirdly, the applicant seeks to rely upon the Draft Referral Guidelines as implicitly endorsing the metapopulation theory.  However, for the reasons earlier given, I cannot give that document any weight.

602 Fourthly, the applicant submits that there is a not remote possibility that a small population may ultimately prove critical to supporting a currently larger population.  The applicant gives the following example:

While much was made by Mr Warren at trial of the relative disparity in size between the Tyagarah and local populations, in fact all but one known population of WSF in the adjoining Tyagarah Nature Reserve has been affected by the recent wildfire there.

603 That submission fails to grapple with Mr Robertson’s opinion in his Fourth Expert Report dated 13 September 2024 that:

Due to the high levels of moisture present in wallum and health communities' soil, many amphibians are able to escape the bushfire by burying themselves underground, or in areas of wetland.  Recent studies of Acid Frogs (including the WSF) have shown that Acid frog populations did not suffer adversely from moderate intensity fires as suitable refuges including standing water were available (Lowe et al 2013), field surveys of the Tyagarah NR confirmed the presence large standing water pools which would act as these refuges.  Thus, the WSF population in Tyagarah NR had options to escape the fire into refuge habitat, wetlands or underground into moist soil, and as such the species population was likely not significantly affected by the fire.  Therefore, [i]t is unlikely that the population within the Development Site would have an increased importance.  I was able to attend the Tyagarah Nature Reserve for one day the 30th of August and one night 3rd of September to undertake habitat investigations and audible survey for the WSF. I recorded the species within the wetland habitats.  This also suggests that the species persists in the Nature Reserve.

604 Finally, Mr Warren and Mr Robertson gave compelling evidence, which I accept, that the relative scale of the population at the Site, as opposed to the Tyagarah Nature Reserve population, makes it clear that any impact of the Development on the population at the Site would be minute.

605 Thus, it was Mr Warren’s evidence that:

MR LANCASTER:  Well, just to address this proposition specifically of the Associate Professor, that any removal or damage of habitat, so on the assumption that that might occur on the development site, that that would impact on the important population. What’s your opinion?

MR WARREN:  Look, you know, to me, the loss of a colony, I think, as Mr Korman called them, would be a shame, but when you look at it in the context of the size of the population in Tyagarah Nature Reserve, and them being of the same genetic type, it’s not a significant impact if the frogs were to be lost.

MR LANCASTER:  And is the assumption you’re making, giving that answer, that the management plans and so on were simply ineffective, or failed, or something of that sort, and there was, in fact, a loss of habitat or frogs from the site?

MR WARREN:  It would be a terrible shame, but not a significant impact on that nature reserve population of which take these frogs are part.

MR LANCASTER:  Yes.  Yes.  And you referred to my learning friend using the word “colony.”  If that is a description of – firstly, is that an appropriate description of, in your view, of wallum sedge frogs on the development site, first?

MR WARREN:  No.

MR LANCASTER:  And secondly, do you see any reason to think that that colony might be lost?

MR WARREN:  No.  It’s not an appropriate term.

MR LANCASTER:  All right.

MR WARREN:  They’re part of the nature reserve population.  I think, you know, if you look at Sydney in 1788, they were a colony, and they were on the other side of the planet from where they came from.  So I think, yes, it’s not an appropriate term if it was in that context.  But … I just can’t see this – you know, the impacts on their – the frogs that are on the site or indeed if there were to be a loss of the frogs, it would not be a significant impact on the Tyagarah Nature Reserve population.  It can’t be.

606 Similarly, it was Mr Robertson’s evidence that:

You know, if we had two hectares of habitat within the Tyagarah Nature Reserve, and we were losing one, that’s a big problem.  But if we have, you know, two to three hundred hectares, and we have a, you know, from my opinion, low likelihood of impacting on that half a hectare within the subject land, I see no way that that could possibly be anything close to significant in the context of the population, regardless of where we draw the line of what’s an important population or not.  The sheer scale or, you know – or lack thereof of impacts on this subject land in the context of the overall population is absolutely minute.

607 Thus, as the respondents explain:

Both Mr Robertson and Mr Warren’s evidence was that even under the worst possible scenario of no mitigation of impact on the WSF whatsoever, only less than one per cent of the relevant population (treating the local population as including Tyagarah Nature Reserve) would be impacted.  This led Mr Warren to agree with Mr Robertson’s view that there would in that scenario only be a “very minor impact on a very large population and can’t be seen as significant”..

608 In short, the applicant’s reliance upon the evidence of A/Prof Wardell-Johnson falls into the error encapsulated by Mortimer J (in Friends of Leadbeater’s Possum at [1292] which bears repeating, namely that:

The question of significant impact must be approached in a sensible, and not overly technical way, because it is dealing with “real life” conduct with alleged “real life” effects on matters of national environmental significance. Part 3 of the EPBC Act is not concerned with the theoretical but with the actual.

(Emphasis added.)

609 It follows that I am not satisfied that the WSF population on the Land is an important population in the sense that it is necessary for the long-term survival and recovery of the species.

9.8.3    Is the WSF Habitat on the Land critical to the survival of the species?

610 The MNES Guidelines 1.1 states:

An action is likely to have a significant impact on a critically endangered or endangered species if there is a real chance or possibility that it will:

* Adversely affect habitat critical to the survival of a species

* Result in invasive species that are harmful to a critically endangered or endangered species becoming established in the endangered or critically endangered species’ habitat

611 The MNES Guidelines go on to state that habitat critical to the survival of a species or ecological community refers to areas that are necessary:

* for activities such as foraging, breeding, roosting, or dispersal

* for the long-term maintenance of the species or ecological community…

* to maintain genetic diversity and long term evolutionary development, or

* for the reintroduction of populations or recovery of the species or ecological community.

612 As earlier held, the experts agree that parts of MZ-2 and MZ-4 represent the areas of highest quality breeding habitat for the WSF within the Land.  I have already made findings as to where that habitat is located within these zones.

613 I also accept, and as the experts all agree, that the WSF currently uses the Development Footprint for foraging and dispersal habitat.  However, for the reasons earlier given, I do not accept that the Development Footprint contains potential breeding habitat, or is likely to become such, if slashing were to cease.

614 However, in absence of an important population and the impact of the Development on the WSF present on the land, even in a worse case scenario, would be “minute”, it becomes very difficult to make a case the SWF habitat on the Land is critical to the survival of the species.   Added to this, as Mr Warren made clear in his evidence, to the extent that there is habitat which has been shown to be important to the population of the WSF on the Land, there are at least two orders of magnitude difference (e.g. from 1.0 to 100.0):

(1)    between the area of the Tyagarah Nature Reserve (approx. 875 ha) and the area of the Land to be developed (approx. 10 ha);

(2)    between the area of WSF breeding habitat on the Land (1-2 ha) and that in the Tyagarah

(3)    Nature Reserve (238 ha).

615 Finally, and in any event, the comprehensive suite of measures contained in the Consent and management plans is, in my opinion, more than sufficient to preserve and, in certain respects, enhance, that habitat.  It is to this last issue that I now turn.

9.8.4    Buffers

616 The applicant contends that all of the experts agreed that to the extent there are any buffers, the buffers are substantially less than the 100-metre buffer recommended by the Draft WSF Referral Guidelines, and less than the 90-metre buffers provided for in the Caloundra South development. It does not follow, however, that the applicant has established that the buffers are inadequate to achieve their function.

617 First, for the reasons earlier given, I cannot give any weight to the Draft Referral Guidelines.

618 Secondly, as I have earlier held, the question of whether particular buffers are adequate is not to be considered in the abstract.  Rather, I accept Mr Robertson’s and Mr Warren’s evidence that the extent of the buffer required will have to take account of other factors, including the relevant stressor (eg human, cane toad, weeds, or fox), how the stressor operates in the environment, and the other mitigation measures to be taken.

619 Thirdly, in the context of this Development, there are a suite of other mitigation measures required under the management plans, together with monitoring obligations and trigger actions.  Other mitigation measures include bioretention plantings, the requirement that residential lots be subject to a restriction on the keeping of dogs and cats under s 88B of the Conveyancing Act, the hydrological and hydrogeological mitigation measures in place, including at the perimeter of the development, and the NorBE performance criteria discussed above. For the reasons given in Parts 5.7, 5.8 and 5.9, I consider that the applicant has not established that cumulatively these measures will be ineffective against the various stressors to which they are directed and which may impact on the WSF or its environment.   To the contrary, there is every reason to suppose that they will be substantially effective, even if they require adjustment in light of the actual results obtained from monitoring the measures after they have been in place, and that overall they will have a beneficial impact on the local WSF population.

9.8.5    Is the design of the artificial ponds appropriate?

620 The applicant argues that the artificial frog ponds forming part of the Development are not fit for purpose for a number of reasons, which I address below.   I have already found, from a hydrological and hydrogeological perspective, that the artificial ponds will more likely than not be effective: see Part 8.6.4 above.

9.8.5.1    Contention 1: WSF habitat requires perched wetlands

621 Based on A/Prof Wardell-Johnson’s evidence, the applicant contends that “WSF require ‘perched wetlands’ – ephemeral wetlands that are created by rainfall and run-off collecting above an impermeable layer of coffee rock or indurated sands. Their habitat is not groundwater fed. This habitat is not readily created artificially”.  The applicant relies A/Prof Wardell-Johnson’s evidence that while constructed ponds may be suitable for the Wallum Froglet, which is, in his opinion, a much more generalist species, they would be highly unsuitable for the WSF.

622 This submission is not supported by the evidence.

623 First, I have already found in line with the evidence of the hydrology and hydrogeology experts that it is the interaction of surface water and groundwater that is important in the design of the artificial ponds in order to ensure a saturated condition which will endure for the hydroperiod required by the WSF but not for a period that could led to infestation by natural predators, such as the mosquito fish:  see above at Part 9.5.3.4; see also Part 8.6.4. The WSF experts also agreed that the ponds will have two regular water sources:  groundwater and rainwater including A/Prof Wardell-Johnson, as is apparent from the following passage in the evidence:

MR LANCASTER:  Do you agree, associate professor, that the ponds will have two regular water sources? One is any expression over time of the groundwater up and down, and the other is rainwater.

ASSOC PROF WARDELL-JOHNSON: Yes.

MR LANCASTER: Yes, all right. I will take it, Mr Robertson, you agree.

MR ROBERTSON: Yes. Yes.

MR LANCASTER:  All right. And to your understanding, that appreciation is part of the design set out in the froglet management plan, isn’t it?

ASSOC PROF WARDELL-JOHNSON: Yes.

MR WARREN: Yes.

MR ROBERTSON: Yes.

624 Secondly, as I have also already held, the ponds will be placed in different locations (and thereby different conditions) on the Site in order to maximise the overall effectiveness of the measure. For example, Mr Robertson explained that each of the constructed ponds:

…may all exist in a very different manner.  They may be on those perched environments.  They may be above coffee rock.  They may be very … dependent on the rise and fall of the groundwater.  So there’s not a direct cause and effect... It’s not going to be the same for every pond. It’s not going to be the same for every location. It is very dynamic across the site.

(Emphasis added.)

625 Mr Warren likewise opined that having a variety of ponds in slightly different locations with different hydroperiods is positive.

626 I accept Mr Robertson’s and Mr Warren’s evidence in this regard.  Mr Robertson and Mr Warren’s evidence is also consistent with the evidence of Ms Holton, who explained that the ponds have been designed to intercept groundwater windows and to have a variety of different hydroperiods.  Indeed, as the respondents point out, A/Prof Wardell-Johnson acknowledged that some WSF breeding sites would be groundwater fed.

627 Thirdly, I agree with the respondents that:

The groundwater model as refined in the Supplementary Hydrogeological Report was used to design and investigate the expected water levels within the created habitats and demonstrates that the average groundwater table will intersect the created ponds… When the groundwater table is above average the water level in the ponds will be higher; when it is below average the ponds will dry out. The fluctuating condition where the presence of water is ephemeral is the target condition for WSF habitat.  Thus the absence of certainty as to the precise location of coffee rock is not a “design flaw” in the created ponds...

9.8.5.2    Contention 2: high groundwater TP and TN levels means the artificial ponds are not fit for purpose

628 The applicant contends that high average levels of TN and TP in monitoring well MW-109 (see paragraph 227 above) mean that the created ponds are not fit for purpose.  I do not accept this submission.  As Ms Holton explained, and Dr Creswell agreed, what was of critical importance for the frog was the level of bioavailable nutrients, that is, nitrate and phosphate levels, which are low.  I accept Ms Holton’s evidence in this regard.

9.8.5.3    Contention 3: criticisms of the groundwater modelling

629 The applicant challenges the groundwater modelling in the Supplementary Hydrological Report, based on evidence of Dr Cresswell who identifies alleged defects in the ground water modelling, namely, an absence of data on the impact of the Development on groundwater levels in dry and wet periods, and the anticipated duration and extent of groundwater fluctuations brought about by the Development.  I have already rejected this submission for the reasons set out at Part 8.7.5 above.

9.8.5.4    Contention 4: the absence of uncertainty analysis makes it impossible to gauge whether the ponds will provide WSF breeding habitat

630 The applicant contends that the ponds are designed “with almost no margin of error”.  The applicant contends that the ponds:

are to be excavated to a depth that provides for a maximum 30cm depth of groundwater ... But the WSF requires wetlands of a minimum depth of 20cm to breed … Average groundwater levels are expected to reduce by between 0 and 20 cm in the area of the eastern and central artificial ponds...

631 It follows, in the applicant’s submission, that there is a “real chance” that none of the artificial ponds will have sufficient water for the WSF to breed.  This chance, the applicant contends, is magnified by the fact that, in the absence of uncertainty analysis, “it is impossible to know the accuracy of the forecast average lowering of the groundwater table, and the confidence that should be placed in the prediction.”.

632 The fundamental difficulty with this contention is that it seeks to import the precautionary principle in the assessment of whether it is likely that the ponds will be too shallow for WSF reproductive success, with consequential adverse impacts for the local population.  Yet, as I have earlier held, that principle has no application in the context of this application for a permanent injunction.  Nor does the contention take account of the continued obligations to monitor the ponds and respond to results which fall short of the required KPIs.

9.8.5.5    Contention 5: the artificial ponds are unlikely to be appropriately managed

633 The applicant’s next contention is that the ponds are unlikely to be appropriately managed during the 5-year post-occupation period.  However, as I have found previously, there is effective provision for active management and monitoring of the ponds, both in the five years after occupation and also after that period having regard to the requirements of the Vegetation MP (applied via the VPA and condition 104 of the Consent).

9.8.5.6    Contention 6: there is no evidence that artificial ponds have ever successfully provided a long-term WSF breeding habitat

634 The applicant contends that there is no evidentiary basis for Mr Robertson’s assertion that artificial ponds have been successfully implemented in other projects.  This is simply not the case.  Mr Robertson referred to two different projects that evidenced successful implementation of artificial frog ponds.

635 In his third expert report dated 13 August 2024, Mr Robertson referred to the Sunshine Coast Airport Expansion project located at Marcoola on Southeast Queensland’s Sunshine Coast.  Mr Robertson explained:

Upon award of the new runway construction contract, John Holland commenced clearing of Wallum Sedgefrog habitat. Frog exclusion fencing was constructed on the perimeter of the retained habitat to prevent access to the construction site. At the completion of the Airport Expansion Project the overall clearing of Wallum Sedgefrog breeding habitat was able to be reduced by 0.48 hectares.

Additional works related to improving retained Wallum Sedgefrog habitat have been ongoing throughout retained habitat. The works included removal of melaleuca species, slashing vegetation and weed management throughout the Wallum Heath Management Area (WHMA) and Vegetation Management Area A (VMA). The project’s acid frog specialist advises that these ongoing works in the WHMA appear to have been positive for acid frog species and combined with large rainfall events should show successful recruitment of desired species.

… Construction of 21 frog ponds in the VMA and WHMA occurred in late 2020 with commencement of planting of the ponds floors following immediately. Following multiple La Niña weather events, the planting works were suspended to allow water levels in the pond to drop and any potential frog breeding to occur. Planting works recommenced in September 2021 resulting in 18 ponds being planted before further rain events suspended the planting in the final 3 ponds.  As of April 2023, the planting has been completed although some ponds have been observed with dieback of plants located on the pond bases.  Investigations have commenced to identify if these plants need to be replaced for the ponds to continue to meet their design purpose.

Monitoring of the constructed frog ponds continued to occur.  During the 2021/22 wet season, Wallum Sedgefrogs were documented breeding successfully at offset ponds for the first time, with early-, mid- and/or late-stage tadpoles of this species recorded at all surveyed ponds within the VMA.  This continues to suggest that the ponds are meeting their design purpose.  Monitoring of the ponds also identified that predatory fish species (Gambusia holbrooki) have been observed within the constructed ponds.

636 Similarly, in his Fourth Expert Report, Mr Robertson referred to the frog ponds that were constructed as part of the Caloundra South project.  In this regard, Mr Robertson explained:

Frog ponds have been progressively constructed commensurate with adjacent development.  In 2022, the majority of frog pond construction was fully completed across the Aura site, resulting in the realignment of the Wallum Sedge Frog northern, central and southern movement corridors.  Frog ponds were constructed in accordance with the Wallum Sedge Frog Management Plan (WSFMP), with continual improvements made to the design based on monitoring data collected.  There are currently only three remaining frog ponds to be constructed.

Frog ponds within the northern movement corridor … were created during the 2015/2016 reporting period. Compensatory habitat in the northern movement corridor achieved the success criteria outlined in the Wallum Sedge Frog Management Plan (WSFMP) and Precinct 2 Environmental Rehabilitation Plan in May 2021 and is now Off Maintenance.  Monitoring has shown that this habitat supports the presence of all three Acid Frogs (Litoria olongburensis, Litoria freycineti, and Crinia tinnula).

Frog ponds along the northern bank of Bells Creek North (Precinct 2-5) were created during the 2016/17 reporting period and continue to be subject to biannual monitoring.  Litoria olongburensis presence was identified in four constructed ponds within the 2023/2024 monitoring period.

Constructed ponds along the southern bank of Bells Creek North are performing well given their relatively young age. Vegetation growth is progressing and some of the ponds have maintained a pH of <5.  Monitoring undertaken during this reporting period shows that the majority of retained habitat patches and six created ponds within this corridor were found to support acid frog populations and appear to be free of competitor species.

(Emphasis added.)

637 It follows that it is simply not correct to say that there is no evidence of artificial frog ponds being successfully implemented in the past.

9.8.6    Impact of the Development on the WSF population

638 The applicant argues that the indirect impacts of the Development will damage or destroy the habitat critical to the survival of the WSF in MZ-2 and MZ-4.  For the reasons given below, that contention should be rejected.

639 Further and in any event, as I have earlier held, the WSF population on the Land is part of the Tyagarah Nature Reserve population by reason of the direct hydrological link between the two populations:  see Part 9.5.2.2 above.  I therefore accept the respondents’ submission that the prospects of there being a real chance of a decrease in the size of the Tyagarah Nature Reserve population of which the population on the Land is a part, a reduction in its area of occupancy, or disruption to its breeding cycle, as a result of the Development are remote and speculative.

9.8.6.1    Damage to dispersal and foraging habitat

640 First, the applicant relies on the evidence of Mr Warren that the development would cause the loss of 10 ha of forage and dispersal habitat.  However, as the respondents submit, the fact that habitat is capable of being used for foraging or dispersal at times of favourable climatic conditions does not render it habitat critical to the survival of the species.

641 Further, as the respondents contend, the WSF Recovery Plan does not suggest that foraging or dispersal habitat are primary components of habitat critical to the survival of the species: its focus is on breeding habitat, food, refuse and essential routes between sites.  While the MNES Guidelines do refer to foraging and dispersal habitat as being critical, I do not give the MNES Guidelines the same weight as the WSF Recovery Plan as I consider that the MNES Guidelines can assist only in a limited way in line with the approach to the Guidelines by Mortimer J in Friends of Leadbeater’s Possum at [1321].  Nor did Mr Robertson accept that the 10 ha of potential forage or dispersal habitat in question constitute habitat critical to the survival of the species.

9.8.6.2    Damage to breeding WSF habitat

642 First, the applicant contends that the absence of adequate buffers, fencing or other effective barriers means there will be nothing to moderate the impact of the 400-500 people to the immediate proximity to the WSF wetland breeding habitat on the Land.  Thus, the applicant submits that there is “at the very least a real chance that the edge effects” will occur, including trampling of frog habitat, dumping of rubbish and garden waste, catching of tadpoles and the ingress of invasive species.  I do not accept this submission.

643 I have already held that the buffers, fencing and other measures directed to preventing ingress to the management zones by humans and invasive species such as cane toads is likely to be effective and an improvement on the current state of the Land:  see Part 5.7 above. The allegation with respect to edge effects from the dumping of rubbish and garden waste is unsupported by any evidence.

644 Secondly, the applicant contends that the stormwater drainage facilities will likely give rise to altered hydrological conditions that will make the wetland environment hostile to the WSF. I have already rejected this contention for the reasons given at Parts 8.7.3 and 8.7.4.  Among other things, the applicant’s submission is predicated on the basis that the swales will fail due to a lack of maintenance and repair.  There is simply no evidence to support this contention and, as I have made clear, there is a comprehensive suite of obligations and monitoring requirements for the bioretention swales.

645 Thirdly, the applicant refers to the Draft WSF Referral Guidelines, which recommend that WSF competitors should be controlled by ensuring that the proposed actions do not create features that encourage them.  Again, as I have already explained, I cannot give any real weight to this document: see Part 9.8.2.3 above.

646 Fourthly, the applicant contends that the swales are located directly adjacent to known habitat.   The applicant asserts that, if the swales become retention basins, there will be no maintenance to ensure they are kept free of vegetation used by competitor species. I have explained the suite of obligations in relation to the monitoring of the constructed and retained habitat areas and rejected the proposition that the swales will eventually clog or malfunction because they will not be maintained:  see Parts 6.7.7 and 8.7.6 above.   Furthermore, contrary to the assumption in the applicant’s submission, the swales are not designed to be retention basins in the sense of permanently retaining water.  As earlier set out, the Stormwater MP explains stormwater runoff from the Development will be directed to the bioretention basins along the perimeter of the proposed road and “will be unlined to allow treated low flows to percolate into the surrounding soils and restore groundwater”.  However, the Stormwater MP also explains that “as the Road 2 West bioretention basin encountered shallow groundwater, it was designed as a 'lined' system. This was necessary to prevent interception with the filter material and allow for the discharge of treated flows to lower discharge points”.  This accords with the evidence of Ms Holton who explained in her report in September 2024 that, among the measures designed to mitigate potential impacts to surface water and groundwater quality given the specific needs of the Wallum Froglet and the WSF:

* incorporation of un-lined bioretention basins located along perimeter roads where the basins have been designed to remove suspended solids and nutrients (principally nitrogen and phosphorus) from stormwaters before 315 directing treated flows to replenish the groundwater table,

* incorporation of lined bioretention basins in areas of the site where elevated groundwaters were recorded to ensure the device’s treatment media does not clog and maintains the discharge of treated flows to downslope discharge points,

* the incorporation of detention capacity upstream of ‘Proposed Suitable WSF Habitat’ to ensure no overflow to the habitat for the 15-minute storm duration for all events up to the 5-year average recurrence interval (ARI). I understand that this objective was defined by the project’s ecologist to limit the volume of stormwater reporting to the habitat areas and promote 325 groundwater recharge, and

* the creation of an additional north-south drain’ (to the east of the existing drain) to capture overflows from the sealed bioretention basin and divert these flows away from the ‘Proposed Suitable WSF Habitat’ up to the design storm event.

647 Finally, the applicant contends that there are no plans for the swales to have dense vegetation coverage above the waterline to repel cane toads, which is treatment proposed only for the secondary drain and adjacent artificial ponds.  I reject this submission for the reasons given by the respondents in their closing submissions:

It is not true to say there are no plans for the swales to have dense vegetation coverage ‘above the waterline’ …: the Landscape Plans prescribe the highest density of planting (8 plants per square metre) of any prescribed area within the “Bio Retention Planting Planting Zone”… . [A/Prof Wardell-Johnson] agreed that the approved plan shows “dense plantings within the swale itself and behind the swale” and that the planting “would become very dense” and would form an effective barrier of vegetation to cane toad access (albeit that there may be period of a month after planting where there may be open areas for cane toads) …

(Cross-references omitted.)

9.8.6.3    Will failed artificial ponds likely attract invasive species?

648 The applicant asserts that there is a real chance that the failure of the ponds will result in “stagnant ponds or bare earth” which will result in invasive species being established in WSF habitat.

649 The applicant’s contention is predicated on the assumption that the artificial ponds will fail, which I have already stated I do not accept as a matter of fact as it is purely speculative and not grounded in evidence.  However, putting that to one side, I address the applicant’s contention that, if the ponds were to fail (which I am not satisfied that they will or, if they do, that remedial actions will not be undertaken to rectify the issue), it will result in the establishment of invasive species.

9.8.6.3.1    Cane toads

650 The applicant argues that the Eastern Sedge Frog (ESF) tends to displace the WSF when wetland environment becomes more nutrient-rich.  The ESF, in the applicant’s submission, is then displaced by the cane toad.

651 The applicant also argues that the Development will cause the cane toad population to multiply, as they are attracted to food scraps, opportunities for shelter, streetlights and home lights, as well as roads as easy and convenient means of movement.

652 As the respondents contend, the applicant wrongly suggests that all it need show is a “real chance” of the creation of “stagnant ponds or bare earth”, thus assisting invasive species.  The applicant has taken Mr Warren’s statement about the ESF out of context.  Mr Warren’s evidence was relevantly that:

Competition from the Eastern dwarf tree frog can be controlled by ensuring that the existing WSF core habitat remains in very good condition.  The implementation of the management plans approved for the development will ensure the WSF core habitat remains in very good condition.

Cane toads have been reported for the site.  AWC recommend dense plantings of sedges around all areas of created habitat to prevent cane toad access.

653 Further, as I explained earlier, I have accepted Mr Warren’s evidence that, if the cane toads were going to cause a problem to the WSF in MZ-2 or MZ-4, then they would already have done so in circumstances where there is currently no dense vegetation around those areas presently and cane toads have not caused a problem to date.  Indeed, as the respondents contend, Mr Warren deposed that the existing tracks already serve a “potential cane toad highway”. Thus, in circumstances where cane toads have not caused a problem prior to the planting of dense vegetation in MZ-2 and MZ-4, it can scarcely be suggested that they will become so after the planting of dense vegetation.  I also refer to and repeat my conclusion on the comprehensive monitoring and trigger action regime established under the Consent and associated management plans which render the negative scenario posited by the applicant highly unlikely.

9.8.6.3.2    Mosquito fish

654 The applicant contends that one of the potential impacts of the Development will be an extension of the hydroperiod of the WSF habitat.  The applicant asserts this impact is particularly likely to occur in the longer term due to the “likely failure of the swale due to clogging or weed infestation after occupation of the Development”. This, in the applicant’s submission, will cause large amounts of stormwater collected from the roofs of houses, pavements and roads to floor the wetlands each time it rains.  It also contends that, even if the wetlands continued their natural weeding and drying cycles, the permanent water in the clogged swales will harbour mosquito fish during dry periods and serve as a point from which they will disperse to the adjacent wetlands during periods of inundation.

655 Again, like many of the applicant’s contentions with respect to the WSF habitat, it is predicated on the assumption that the swales will fail, which I have already explained is an assumption I cannot accept in the face of the evidence.

656 In any event, Dr Sutherland explained that there is such little runoff as a proportion because of how high the infiltration rates are.  Dr Sutherland went on to explain:

The created habitats and the maintained habitats – are going to perform adequately because they don’t rely on surface runoff, they principally rely on either groundwater reporting to the surface … but also massive input from rainfall as well.

657 Further, as Dr Sutherland deposed, the ponds will be created at different levels in the landforms, over different substrate to provide the maximum degree of difference in hydroperiods that are suitable for the WSF and wallum froglets, within a band that the engineers have set.

658 For these reasons, I am not satisfied that the swales will clog and lead to unprecedented levels of stormwater runoff infiltrating the artificial ponds and causing the influx of the mosquito fish.  This argument is based on a number of speculative events occurring, and does not withstand scrutiny against the evidence.

9.8.7    Will the Development substantially interfere with the WSF’s recovery?

659 The applicant refers to the following three guidelines forming part of the WSF Recovery Plan that are relevant to assessing whether the Development will interfere with the WSF’s recovery:

(1)    Further clearing of vegetation within wallum swamp catchments, especially in mainland areas where much vegetation has been cleared already should be avoided. At a minimum, vegetation within 50m of breeding sites must be left intact;

(2)    Storm water runoff from urban areas should be directed away from breeding sites or treated to remove nutrients before being discharged into wetland areas; and

(3)    Residents in wallum areas should be discouraged from fertilising lawns and encouraged to plant native species that tolerate nutrient-poor sandy soils.

660 The applicant submits that the Development will substantially interfere with the recovery of the WSF species because it directly undermines and stymies the above three components.  The applicant advances three bases in support of this contention.

(1)    First, the applicant argues that the WSF breeding sites are directly adjacent to the Development Footprint which will be completely cleared of vegetation and built up.  The applicant asserts that no vegetation will be retained to the west of the breeding site in MZ-2, or the east of the breeding site at MZ-4.

(2)    Secondly, the applicant contends that there is a real chance that nutrient-laden storm water runoff will be discharged into wetland areas – both in the short term during high rainfall events which cause the raw storm water to overtop the treatment swales, and in the long-term as a result of failure to maintain the treatment facilities.

(3)    Thirdly, the applicant argues that the Consent and various management plans do not mandate or even suggest any measures, such as covenants be recorded on title to the subdivided residential lots, which would inhibit residents from applying lawn fertiliser or restrict them planting inappropriate species in their gardens.

661 These submissions must be rejected.

662 First, as the respondents contend and I have earlier explained at Part 6.6 above, the Stormwater MP provides comprehensive and effective measures to re-infiltrate treated stormwater within the Development Footprint and/or at its perimeter and to ensure that the Development has a neutral or a beneficial effect (referred to as NorBE) on water quality.

663 Secondly, I accept Ms Holton’s evidence that “the stormwater treatment train for the site has treatment devices both within the development footprint and all the way around the perimeter. And those devices … are specifically designed to strip nutrients.”  As a consequence, if the nutrient levels were to rise in the way, for example, that Dr Cresswell suggested in his evidence, Ms Holtong explained that the biological component, that is, the plants “will respond just like a plant in your garden whereby if you apply more fertiliser to a plant in your garden it grows bigger and it takes up more fertiliser. It’s the same in the bioretention system…. as the plants … grow … they absorb these nutrients and if there’s more available they will have them. ”  As a consequence, I am not satisfied that the absence of covenants inhibiting the use of fertilisers by residents of the Development will lead to harmful consequences in terms of the nutrient levels in the management zones and their suitability for the WSF.

664 Thirdly, as respondents also contend that, while accepted the Development will not rehabilitate the Development Footprint into a higher quality WSF habitat, this does not mean that the Development will substantially interfere with the recovery of the species.

9.9    Conclusion on the WSF

665 When the evidence is considered therefore as a whole, it is apparent, in my view, that the applicant has failed to establish that the Development is likely, in the sense of a real and not remote chance, of having a significant adverse impact on the WSF species as a whole.

10.    MITCHELL’S RAINFOREST SNAIL

666 The experts engaged by the applicant in relation to the MRS are A/Prof Grant Wardell-Johnson and A/Prof Newell, and the experts engaged by the respondent in relation to the MRS are Mr Karl Robertson and Dr John Stanisic (collectively, the MRS Experts).  The experts prepared a Joint Expert Report in relation to the MRS dated 23 September 2024 (the MRS Joint Expert Report).

10.1    The applicant’s expert witnesses

667 A/Prof Wardell-Johnson’s experience is set out in Part 7.4.1 above, together with my findings as to the need in general for corroborative expert evidence in relation to his opinions.  He has not published any papers in relation to the MRS.

668 Dr Newell is an Associate Professor at Southern Cross University.  A/Prof Newell described his experience as follows:

I am currently an Associate Professor at Southern Cross University and have been actively researching cryptic fauna in northern New South Wales for over twenty five years and have published over 50 refereed journal articles …  My research focus has predominantly been on frogs, many of which were considered poorly studied and difficult to detect, prior to my research.

As part of my academic role, I supervise postgraduate and undergraduate research students.  This involves helping design and implement specific research projects. Commencing in 2010 I had the pleasure to supervise a research student (now Dr Jonathan Parkyn) who completed a PhD entitled “Studies on the ecology of the endangered camaenid land snail Thersites mitchellae (Cox, 1864).”  The project applied a range of methods not usually applied to endangered snails (see Parkyn and Newell 2013) to answer key questions about the species distribution and ecology.  Prior to Dr Parkyn’s work, very little was known about the ecology and habitat preferences of this species.

During this period, I also supervised three third year undergraduate student research projects dealing with Thersites mitchellae (MacDonald 2011; Challisthianagara 2011, and Schouten 2014). I am co-author on three papers that are relevant to this matter (Parkyn et al 2015; Parkyn, Brooks and Newell 2014; Parkyn and Newell 2013), and I also hold unpublished data from Parkyn’s 2014 thesis.  As part of my role, I participated in and co-designed surveys for Thersites mitchellae across the species narrow range.  Surveys for the snail consisted of replicated plot based searches (a 900m2 area) that were searched for a minimum of two hours each on three occasions.  The approach allowed us to estimate detection probabilities associated with finding snails.  During these surveys I detected many specimens in the field and I am familiar with the habitats in which they are found.  My ability to identify the species stems from this field experience.  The opinions expressed in this report are based on my field experience.

669 A/Prof Newell agreed that he had read and agreed to be bound by the Expert Witness Code of Conduct.  However, it emerged in cross-examination that he had been an advocate against the Development and that he had not disclosed these matters in his expert report.  In particular:

(1)    While he did not recall commenting in late 2023 on the Save Wallum Community Facebook page to the effect that he did not know how the original ecologist sleeps at night, he had no reason to think that the comments were made by anyone else.

(2)    He had spoken at a Council meeting on 14 December 2023 against the Development where he had raised concerns in relation to a number of threatened species, including the MRS.  He said (and I accept) that he had done so on his own account and not on behalf of the applicant, even though there was material published by third parties indicating that he spoke for the Save Wallum.

(3)    He did not recall providing quotes for a Save Wallum media release on 18 March 2024 although there may have been statements he made before that date and did not recall saying the Development “is a slap in the face to national conservation objectives”. In the circumstances, I do not consider that the respondents have established that he made the “slap in the face” statement.

(4)    He did a radio interview with the ABC when asked by his university and made a post on the ABC Listen page that the brochure put out by the first respondent hides the fact that the developer intends to destroy existing habitat for at least 13 threatened species and that bias exists around consultants making a decision about the significance of an impact.  As to the latter point, he later said that he was “referring to a problem” that he saw “in the system” and was not necessarily casting any doubt on the consultants used.

(5)    He had not referred to his prior advocacy against the Development in any of his expert reports or in his curriculum vitae.

(6)    He denied that he had very strong views on the Development (although I do not consider that this is consistent with his other admissions) but said that he had “very strong views about conservation of critically endangered species” and “the adequacy of the work that has been completed to adequately assess the significance of the impacts” at least in relation to the MRS.  He also described himself as “a public advocate for threatened species and their conservation”.

(7)    He did not accept his role as being an advocate as to why the Development should not proceed, saying “that’s not my role. I’m here to provide information for the court”.

670 The respondents did not apply to exclude A/Prof Newell’s evidence, but submitted his evidence should be received in the same manner that Mr Robertson’s evidence was received, that is, subject to submissions as to weight.

671 I accept that A/Prof Newell genuinely regards himself as an advocate for threatened species, and that he genuinely holds the views he has expressed regarding the threat posed to the MRS by the Development.  I also accept his undoubted expertise on snails, including on the MRS.  However, I do not accept his evidence that he is not a strong opponent of the Development.  The statements which he accepted he has made in the past about the Development strongly suggest otherwise.  Furthermore, his evidence that the reason why he did not disclose matters in his expert reports was because he engaged in the activities referred to above before his report, suggests that he may not have fully understood his obligations under the Expert Witness Code of Conduct.  In short, therefore, I consider that his prior advocacy against the Development and his scepticism about experts who provide services to Developer are matters which I should take into account in considering the weight to be given to his evidence as they indicate that he may not have applied his mind to the issues with the requisite degree of impartiality and detachment, even if (as is likely) only subconsciously.  It follows that I have approached his evidence with caution, save where other evidence corroborates his views.

10.2    The respondents’ expert witnesses

672 The respondents engaged Mr Karl Robertson and Dr John Stanisic.

673 Mr Robertson’s experience and my conclusions as to the weight to be given to his evidence generally is set out above at Part 7.4.2 above.

674 Mr Robertson’s experience in relation to the MRS was specifically criticised by Associate Professor Newell as follows:

The bulk of Robertson’s experience appears to be associated with helping developers navigate approval processes. He has a Bachelor of Environmental Science from Southern Cross University and has worked in short term positions prior to his current role. I do not consider that he has the qualifications or experience to comment on matters pertaining to assessing the significance of MRS populations and is merely repeating Dr [Stanisic’s] advice.

675 While this observation appears unfairly in my view, to question Mr Robertson’s impartiality, I accept that Dr Stanisic has the greater experience in relation to the MRS and consider that his evidence should be afforded considerable weight.  Dr Stanisic is an Honorary Research Fellow at the Queensland Museum with extensive experience in studying snails, and has previously been involved with formulation of a management plan for the conservation of MRS.  Dr Stanisic described his experience as follows:

I am currently an Honorary Research Fellow at the Queensland Museum where I have been researching land snails for over 40 years, 26 years as the Curator of Molluscs. My research focusses on the collection and documentation of eastern Australian land snails. I have collected in more than 2000 sites and from the Torres Strait islands to southern Victoria and described over 400 new species of land snails in that time. I have attached my CV to demonstrate my expertise gathered through field experience with eastern Australian land snails (Annexure 1).

I am particularly familiar with Mitchell’s Rainforest Snail (Thersites mitchellae) [hereafter MRS] having conducted the original survey of MRS for the New South Wales National Parks and Wildlife Service (Stanisic 1998), assisted with preparation of the Recovery Plan for MRS (NSW NPWS 2001a) and assisted with the declaration of Stotts Island as critical habitat for MRS (NSW NPWS 2001b). I was co-supervisor for Dr Jonathan Parkyn’s PhD thesis (Parkyn 2014) entitled “Studies on the ecology of the endangered camaenid Thersites mitchellae (Cox, 1864)”.

I have also been actively involved with formulation of a management plan for the conservation of MRS in a 2.5 ha patch of subtropical rainforest immediately behind the Kingscliff shopping centre. The area was to be subject of a restrictive covenant to the benefit of the Tweed Shire Council as specified by development consent orders (Stanisic 2020, Annexure 2). This study involved five years of monitoring the species in situ prior to the implementation of the management plan.

676 As such, Dr Stanisic had clear expertise in eastern Australian land snails including the MRS, through among other things, field work and his involvement in the Kingscliff management plan for the conservation of the MRS.

10.3    MRS Conservation Advice

677 Information about the MRS species is contained in the Conservation Advice for Thersites mitchellae (Mitchell’s Rainforest Snail) (MRS Conservation Advice), which took effect on 16 December 2016.

10.3.1    Species information

678 The MRS is a land snail described as follows in the MRS Conservation Advice:

The shell of the Mitchell’s rainforest snail is large to very large (diameter up to 45 mm), yellowish with broad, brown and dark brown spiral bands. The spire is strongly raised, giving it a triangular profile. The apex of the shell bears vague radial ridges and the shell is smoother lower down. The shell bears microsculpture of fine radial wrinkles and ridgelets that become obsolete on the last (largest) whorl. The animal is slate grey with a yellow dorsal stripe. Eggs are round and white.

(Citations omitted).

679 The MRS is a nocturnal species that shelters in cryptic microhabitats during the day.  Individual snails can move up to 15 metres in one night.

680 The MRS is the only animal in the proceeding which has the classification of “critically endangered” under the EPBC Act.  According to the MRS Conservation Advice, this classification is due to its restricted and fragmented geographic distribution and low number of individuals.

681 As explained in Part 3.6 above, s 179(3) of the EPBC Act provides that “[a] native species is eligible to be included in the critically endangered category at a particular time if, at that time, it is facing an extremely high risk of extinction in the wild in the immediate future…” (emphasis added).  Mortimer J in Friends of Leadbeater’s Possum at [1422], found that this classification puts an animal “in a special category, acknowledging the severity of the risks it faces… any adverse impact on the species beyond one that is negligible or fleeting or for some other reason not material is likely to be significant”.  I agree and therefore also agree with her Honour’s approach at [1424] that, when considering impacts upon a critically endangered species, impacts on individual members of the species do matter.

10.3.2    Species distribution and habitat

682 The MRS Conservation Advice estimates that the area inhabited by the MRS is no more than 5km2, and in 2011 its total population was estimated to be between only 350 and 500 individuals.

683 The regional distribution in the MRS Conservation Advice was described as follows:

Mitchell’s rainforest snail is endemic to northeastern New South Wales, where it occurs in remnant vegetation on the coastal plain between the Richmond River and Tweed River.  This species has also been recorded from adjacent mid-elevation areas including Wilsons River and Mount Jerusalem. The largest known population and largest remaining single area of suitable habitat is in Stotts Island Nature Reserve near Murwillumbah, which was declared critical habitat for this species in 2001 under the New South Wales Threatened Species Conservation Act 1995.  A complex of smaller populations and habitat fragments has also been identified in remnant areas around Cumbebin Wetland at Byron Bay…

Preferred habitat at lower altitudes are areas of lowland subtropical rainforest and swamp forest on alluvial soils.  On higher ground the species occurs around the edges of wetlands with an overstorey of palms and fig trees.  During periods of activity, Mitchell’s rainforest snail is typically found amongst leaf litter on the forest floor, and occasionally under the bark of trees.

(Citations omitted).

684 The MRS Conservation Advice describes the habitat and feeding requirements of the MRS as follows:

Individuals select particular microhabitats in which to retreat during the day, such as Gahnia clarkei (tall saw-sedge) in rainforest and Melaleuca quinquenervia (swamp paperbark) wetland.  The species also shelters within litter in palm fronds in Archontophoenix cunninghamiana (Bangalow palm) forest, and in coarse woody debris in all habitats.

Mitchell’s rainforest snail is a generalist feeder whose food source varies with the substrate.  Fungal material contributes a high proportion of the diet, suggesting that coarse woody debris – a common fungal substrate – may be an important requirement for this species in rainforest-associated habitats…

(Citations omitted).

10.3.3    Threats

685 The chief threats to the species include habitat loss, fragmentation, and disturbance, with additional impacts identified including fire, exotic weed invasion and predation by feral animals.

686 In respect of land clearing, habitat degradation and disturbance (which are known, current threats to the species), the MRS Conservation Advice explains that:

By 2001, land clearing had been extensive across the species' range, and many of the small areas of surviving habitat were reported as being still at risk.  The threat of clearing of lowland rainforest, swamp forest, and wetland margins for urban development and agriculture is continuing.

Desiccation is the greatest threat to land snails.  Undisturbed habitat ameliorates the effects of drought events as tree cover ensures a level of environmental moisture.  The majority of populations occur in small areas of remnant rainforest including narrow strips of rainforest bordering coastal wetlands.  These small remnant areas, with a high perimeter to area ratio, are at risk from changes to hydrology, and edge effects including desiccation, habitat disturbance, frequent fire and invasion by exotic weeds and feral animals.  The species has limited dispersal capacity and may be unable to move between habitat fragments, limiting the viability of its network of populations.

(Citations omitted).

687 Logically, the higher the perimeter for an area, the less compact the area, and the greater the exposure of the perimeter to the external environment.

688 With respect to rat predation and weed invasion which are known, potential threats to the species, the MRS Conservation Advice advises that:

Rats are known to prey on land snails. The incidence of predation is likely to be high, as rats are nocturnal scavengers, and Mitchell’s rainforest snail is also nocturnal. In 2001, predation was cited as a threat at all locations, although the impact on abundance was not reported. This threat of predation by rats is ongoing.

Disturbance by exotic weeds has been cited as a threat, although the impact is unknown. The use of herbicides to control weeds in and near habitat areas is also a threat, as glyphosate and glufosinate-based herbicides are known to affect the development to maturity of other land snail species.

(Citations omitted).

10.3.4    Conservation and management priorities

689 The MRS Conservation Advice sets out a number of priorities, across the fields of conservation and management, surveying and monitoring, and information and research, namely:

Land clearing

* Prevent clearing of all lowland subtropical rainforest and swamp forest habitat within the species’ range.

* Seek to increase the level of legislative protection and active management planning for localities where this species occurs. For crown and private land investigate and/or secure inclusion in reserve tenure if possible.

* Encourage landholders to enter formal conservation arrangements, land management agreements and covenants on private land that promote the protection and rehabilitation of lowland rainforest, swamp forest and wetland margins.

Habitat degradation and disturbance

* Liaise with relevant land managers to maintain natural hydrological flows through vegetation buffers of at least 100 m around lowland rainforest and swamp areas where possible. Target properties that increase habitat connectivity with formal reserves.

* Within the habitat for Mitchell’s rainforest snail, retain a buffer of native vegetation and leaf litter around all occurrences of this species. Allow fallen timber and coarse woody debris to remain on the ground in all known habitat, and leave dead trees standing.

* If undertaking restoration and augmentation planting, include species from the ground layer and understorey (e.g. tall saw-sedge and ferns) in areas of degraded habitat where weeds are managed. Revegetation should focus on expanding existing smaller areas of suitable habitat.

* Manage any other likely, potential or emerging threats to habitat quality and causes of habitat modification, such as further invasion of weeds and any removal of wood.

* Erect appropriate signage to indicate conservation of individuals or groups of this species, and to help prevent accidental trampling.

* Ensure land managers are aware of the species’ occurrence and provide protection measures against key and potential threats.

…

Invasive species

* Where possible, manage predation by rats using appropriate methods (e.g. DEWHA 2009). Consider monitoring the impact of feral predator control after any large fire or large rain event.

* Control rats in urban areas that adjoin areas of known or potential habitat.

* Control or remove exotic weeds that alter the vegetation structure of the lower shrub and ground layer in Mitchell’s rainforest snail habitat. Avoid the use of herbicides in or near known and potential habitat. Minimise any mechanical disturbance to the litter layer and fallen logs associated with mechanical control. Ensure that weed control work is conducted in a staged manner, maintaining a moist microclimate.

* Prevent ornamental plants and weeds in urban areas from escaping into native forest and wetland areas.

* Avoid the use of snail baits and pesticides in urban areas that adjoin or are near known and potential habitat

10.4    MRS habitat: the expert evidence

690 There is a dispute between the experts as to what kind of habitat is suitable for the MRS which bore upon their assessment of whether a survey of the Development Footprint should have been undertaken and is also relevant to the question of the impact of the Development on any potential or actual MRS habitat.

691 On the one hand, A/Prof Wardell-Johnson considered that the main habitat of the MRS “actually is melaleuca with sedge understory” as well as secondary habitat “which includes gahnia” – both of which are common at the site.  He considered that there are also areas of suitable habitat within the Development Footprint, particularly given that the species can occur in quite small areas of habitat.  A/Prof Newell agreed that the MRS is “not restricted to rainforest … and does occur in melaleucas and gahnia sedgelands, wet sclerophyll forests”.  It was his view that there are areas of suitable habitat within the development footprint, being “essentially the drainage lines in the area to the north-west”, bearing in mind that the MRS occur in “very small patches of habitat”.  In this regard, he observed that there is a need to assess how habitat is perceived “when you’re a tiny snail”.  

692 Mr Robertson agreed with most of these habitat requirement comments.  However, he considered that:

…The biggest factor for the Mitchell’s rainforest snail is the presence and persistence of moisture.  The best way to retain that moisture through all environmental conditions is to have a full vegetation structure, have a canopy, an understorey, a thick and prolific understorey…  a shrub layer, and then have … fallen timbers, course woody debris, leaf litter, those types of things.

That’s the ideal habitat for the snail. That’s the habitat that will allow the snail to persist through all weather conditions.  The only area that I found within the entire subject land was in the far east in some depressed areas which were a swamp sclerophyll with some rainforest characteristics underneath.  I find it highly likely that those areas would remain wet through ... all weather conditions.  The soils are not typical.  They’re – typically, the – the Mitchell’s rainforest snail would occur on alluvial soils.  The soils throughout the landscape aren’t alluvial.  They’re more marine-influenced.

693 Dr Stanisic concurred with Mr Robertson and considered it “quite amazing” that the MRS is found in wallum country:

…this is a rainforest snail and it can exist in rainforests, palm forest, adjacent wet sclerophyll forest, or what we call swamp – swamp forest in the recovery plan.  The fact that it is found in the wallum country is quite amazing actually.

It’s at the limits, as I see it, of its ecological envelope.  Snails, per se, do not like sand country.  It affects their slime network.  I’ve sampled wallum in the southern Queensland, and it’s very depauperate for snails, usually, maybe, five species and not particularly big species.  So I think that these records, which are basically within the conservation zones, have to be believed, and they are probably in the best position for the snail to proceed, but I would say that finding one or two snails does not make a population.

I would like to refer to all these findings of the snails as little colonies that have been scattered through land clearing and historical events, and I like to think that when I find a lot of shells, that I can certainly say that, you know, that population has some viability about it going forward, but if we don’t – and I had a look at the site in September of last year, and the development footprint is totally insufficient for the snail to exist in, I – I strongly believe, and those little areas in the conservation zones on either side of the development provide some sort of habitat.  They really need leaf litter on the ground, at least some type of canopy coverage to keep in the moisture, and the likelihood of woody debris being around for fungal growth because they’re great fungal eaters…

694 Dr Stanisic’s opinion was not altered in cross-examination by research that the applicant suggested had overtaken his views.

695 A/Prof Newell agreed with Dr Stanisic’s assessment, except with respect to the necessity of canopy coverage and that the contention that the MRS habitat does not occur on sandy substrates.  A/Prof Newell accepted that leaf litter, coarse woody debris and fungus is important for the MRS, but with respect to canopy coverage stated that moist microhabitats can occur in sandy substrates.  A/Prof Wardell-Johnson agreed that microclimates for the MRS can occur in sandy substrates.  By contrast, while accepting that wallum country may support the species in patches, Dr Stanisic considered that the Development Footprint will not support the MRS because it does not have a “microhabitat of any sort to support the snail”.

696 To the extent there is a disagreement between the experts on the possibility of sandy substrate and the microclimate within the Development Footprint supporting an MRS population, I prefer the evidence of Dr Stanisic (who has over 40 years of expertise in snails), as well as that of Mr Robertson.  Not only is Dr Stanisic a highly specialised expert in snails with over 40 years of experience but his opinion accords with the advice as to habitat contained in the MRS Conservation Advice.  The latter is a document to which I give considerable weight, given that such advices are, as Mortimer J held in FLBP at [25], “mandatory and foundational documents describing each threatened species, its characteristics and habitat, and the threats posed to it”.  For the same reasons, I accept the evidence of Dr Stanisic (and Mr Robertson) that the MRS prefers subtropical rainforests, swamp forests on alluvial soils, which support the MRS’s habitat needs of a moist microhabitat, leaf litter, woody debris and fungus, as opposed to the evidence of A/Prof Newell and A/Prof Wardell-Johnson.  I also accept the evidence that canopy cover is likely to be necessary for the survival of the MRS in the context of this development.

10.5    Does the MRS inhabit the Land?

10.5.1    Presence of the MRS in the adjacent Tyagarah Nature Reserve

697 It was common ground that the MRS is known to occur in the adjacent Tyagarah Nature Reserve.

10.5.2    Should an inference be drawn that the MRS is present in the Development Footprint?

698 There is no evidence of any sightings or detections of the MRS in the Development Footprint.  However, as I foreshadowed in the section concerning habitat, the applicant contended that:

(1)    there is significant MRS habitat located within the Development Footprint such that the Development will directly destroy critical MRS habitat; and

(2)    a survey should have been undertaken to ascertain whether the MRS is in fact present in the Development Footprint.

10.5.2.1    Is MRS habitat present in the Development Footprint?

699 With respect to the first question, the applicant submitted that:

…most of “the larger area of PCT1230” which Dr Stanisic agreed there was value in protecting as MRS habitat is situated within the Development Footprint… Dr Stanisic confirmed in a letter to the Minister administering the EPBC Act that the development will require clearing of swamp forest, which is likely MRS habitat…

Thus Dr Stanisic, GWJ and Associate Professor Newell concurred that the Development Works will directly destroy significant MRS habitat.

In addition to the western habitat, Associate Professor Newell contended there was potential MRS habitat along the vegetated drainage lines dissecting the land in a north- south and east-west direction… He said there were areas within the drainage lines that included Ghania sedges (saw-sedge) and Paperbarks (Melaleuca). He supported this view by reference to Dr Parkyn’s field research... GWJ concurred that melaleuca sedge forest assured the snails of appropriate moisture levels, explaining why they are relatively common in such habitat…

(Cross-references omitted.)

700 These submissions must be rejected.

701 With respect to PCT 1230, I agree with the respondents that Dr Stanisic conceded that PCT1230 areas are “possibly” suitable MRS habitat.  However, his apparent agreement that there was “value in protecting at least the larger areas of PCT 1230” occurs during a line of cross-examination where, as the respondents contend, the transcript reveals considerable confusion about the precise questions being put to him.  Furthermore, large parts of PCT 1230 lie within MZ-4 and are therefore outside the Development Footprint which, on the applicant’s own case, is in a degraded condition.

702 Moreover, contrary to the applicant’s submissions, I do not consider that, fairly read, it can be said that in cross-examination Dr Stanisic “confirmed that the entire area where the MRS was detected to the south of the site, up to the creek … was probably MRS habitat”.  A similar confusion in the questions being put to Dr Stanisic is evident in the line of questioning at this point in his cross-examination.  Nor, as the respondents point out, is there anything in Dr Stanisic’s reports which suggest a broad study of the area to the south of the Land.

703 Finally, it was Mr Robertson’s evidence that, while the areas in the far east of the Land where detections and sightings were made were suitable for the MRS:

…Within the development footprint, we’re talking about wallum, heathlands which are wildly inappropriate for the Mitchell’s rainforest snail.  In regards to the north-south drainage line, it is a very thin and highly disturbed area.  It’s not mature.  It is highly disturbed.  There is weed invasion and those types of things in the far west.  There’s an area in the north-west of the site which has been discussed as well.  It is a very broken canopy and large amounts of weed invasion – or larger amounts of weed invasion in those areas as well, so I wouldn’t find those appropriate for the Mitchell’s rainforest snail.

704 I accept this evidence, which accords with Dr Stanisic’s evidence as to the characteristics of suitable MRS habitat and habitat which is not suitable, for the reasons given in Part 10.4 above.

705 It follows that I reject the applicant’s submission that there is suitable MRS habitat located within the Development Footprint and that the Development will therefore directly destroy MRS habitat.

10.5.2.2    The applicant’s contention that a survey of the Development Footprint should have been undertaken

706 With respect to the second issue, the applicant submitted that a survey should have been undertaken and no explanation was given by the respondents for failing to do.  Specifically, in their submission:

Contrary to the statements in the EPBC Due Diligence Report…approved by Mr Robertson …there have never been any snail surveys conducted on the Development Site.

AWC determined [in the BDAR] that no survey need be carried out because it had assessed the MRS as “not on site”… JWA did not identify the MRS because it did not conduct any surveys targeting snails, as Mr Robertson ultimately conceded…

Dr Stanisic clarified that he saw no problem with targeted snail surveys conducted by qualified people… The respondents did not provide any explanation for the failure of their consultants to conduct surveys for the MRS as part of the EPBC due diligence process – a particularly serious omission in the light of the importance placed on targeted surveys in the Recovery Plan…

(Cross-references omitted.)

707 However, as the respondents submit, it is not correct to say that no explanation was given by the respondents for not undertaking a survey.  Dr Stanisic agreed that a targeted snail survey could be conducted that does not threaten the survival of the MRS community, provided that it is conducted by people trained in snail surveying.  Contrary to A/Prof Newell’s evidence that the MRS may occur on the Development Footprint, Dr Stanisic considered that, being a wallum area, the area was unsuitable for the MRS so he would not undertake a survey there.  This evidence is entirely consistent with the description of MRS habitat in the MRS Conservation Advice set out earlier, namely, lowland subtropical rainforest and swamp forest on alluvial soils or, on higher ground, around the edges of wetlands with an overstorey of palms and fig trees.  Dr Stanisic also maintained that one has to be “realistic” about funding and that an assessment can be made of “what is worth surveying for and what is not worth surveying for” on a particular site.  In this regard, Appendix 3 to the Approved Recovery Plan for the MRS prescribes very strict guidelines for the careful conducting of any survey to avoid any unnecessary damage to sites or harm to the snails.  This evidence is also supported by the labour-intensive, specialist process necessary to undertake such a survey, as explained by A/Prof Newell:

HER HONOUR: So what would you say was an appropriate way to undertake a survey in a non-threatening manner?

ASSOC PROF NEWELL: Very methodically, very carefully, very intensively. That means you’re actually on your hands and knees, you’re – you’re turning over individual leaves and looking through stems of the gahnia sedges. You’re actually – you know, you would spend several hours – have several people spending several hours searching a – so when – when we did it in the – in the Parkyn work – so we had – I think, from memory, they were 30 by 30-metre plots, and we said we – there was two people who conducted two hours worth of survey effort within each of those plots on a given survey. So, from that, we were able to actually provide detection probabilities for each survey occasion, and we did detect the species at all of those sites – not on all occasions, but at all of the sites. The other way that you can do it is through radio telemetry, and John [Stanisic] referred to the – the radio tracking and saying that there was multiple occasions where the species could not be found, even though they had transmitters on them. That’s – that’s not true. They were in locations that were inaccessible, so they may have been deep within a site, or log, and there was only, I think, two or three occasions where that occurred during that study.

708 It follows that I accept Dr Stanisic’s evidence that to expect a survey on the Development Footprint for the MRS to yield a positive outcome was unrealistic, and reject A/Prof Newell’s evidence to the contrary.  Nor, given the description of MRS habitat in the MRS Conservation Advice and my conclusions on suitable MRS habitat in Part 10.4 above, is there any basis in the evidence on which I could infer that the MRS could be present on the Development Footprint.

10.5.3    Presence of MRS in the conservation zones

709 The Vegetation MP recognises that there is suitable habitat for the MRS within MZ-1 and MZ-4, noting that areas of suitable habitat for the MRS within these zones “will consist of slightly elevated ground on the margins of coastal wetlands or narrow strips of rainforest vegetation with a well-developed moist leaf litter layer with dead palm fronds”.

710 Mr Robertson, Dr Stanisic, and Associate Professors Newell and Wardell-Johnson agreed that the MRS was present on the Land within the conservation areas. However, Associate Professors Newell and Wardell-Johnson were concerned about the absence of any survey in the Development Footprint (which I have already dealt with above).  Further, while A/Prof Newell was of the opinion that the MRS also occurs “north, south, east and west of the subject land”, there is no record of detections in evidence to support this view or other evidence which substantiates this claim.

711 The map collated by Mr Denny in his Third Expert Report plots the locations of detections and sightings of MRS on the land by the applicant’s witnesses as follows:

712 This map needs to be read together with the following map which plots locations of initial detections by witnesses that were subsequently altered. Where this occurred, the original incorrect coordinates are identified as such (by the reference “IC”) and in red.

713 I accept the detections of the MRS found in MZ-1 to the east of the Development Footprint as depicted in this map.  The location of the detection to the south of the Land was, however, in dispute.

10.5.4    Disputed location of MRS south of the Development Footprint

714 In his first affidavit sworn on 2 August 2024, Mr Maderski, Handyman, said that he saw two snails which considered were Mitchell Rainforest snails at about 10pm and 11.04pm on 11 July 2024 which he photographed with his camera.  He later downloaded the photographs onto his computer and accessed the metadata with the date, time and location coordinates. However, in his third affidavit sworn on 9 October 2024, he said that he discovered shortly thereafter that the coordinates of the two MRS detections (as well as numerous other photographs of other species’ detections) that were given in his first affidavit may not have been correct because his phone (which he connected to his camera via an app in order to add GPS locations to the photographs taken on his camera) had the “GPS accuracy” settings turned off.  As a result, he accessed Google Maps, which provides a longitude and latitude reading for any point where a pin is dropped, and placed a pin on the location on an aerial photograph where he recalled taking the photographs in question.

715 The Respondent submits that the evidence of Mr Maderski as to the amended coordinates for the sighting south of the Land is not reliable and should not be accepted:

…the Applicant relies on an asserted detection approximately 30m to the South of the Land. As the map … records, this sighting “MM6-C MRS” was originally asserted by the Applicant to have been recorded a substantial distance further to the south. The witness responsible for the detection deposed that the GPS metadata they relied on for the initially asserted location was “likely inaccurate” for reasons he was “unable to explain”…

The location for the detection that the Applicant now relies on to assert that MRS habitat runs right up to the southern boundary of the Land is a product of the witness’s own recollection, assisted by Google maps accessed on a small laptop screen, some six months after the fact … This evidence plainly cannot be relied upon to draw any inferences about the actual location of the MRS detection, the metes and bounds of MRS habitat or the need for buffer zones.

(Cross-references omitted.)

716 The difference between the original plotted locations of the MRS and the amended locations is material, particularly in the case of the detection marked MM6.  Thus, while, having regard to the scale on the map, Mr Maderski considered that the discrepancy with respect to MM5 was a little more than 30 metres, he considered that there appeared to be a discrepancy of more than 90 metres with respect to the detection marked MM6.  He also agreed that both locations were “off the subject lot boundary”.

717 I accept that Mr Maderski was genuinely of the view that the first coordinates could not be relied upon and tried his best to pinpoint the location where he believed the photographs were in fact taken in undertaking his Google Maps location exercise.  In this regard, his evidence was frank and he made appropriate concessions.  However, I agree with the respondents that his evidence as to the location of the amended coordinates is too unreliable to be given any weight.  In particular, Mr Maderski is not an expert.  Mr Maderski properly accepted in cross-examination that “going by memory I could have made a mistake.  I’m not perfect, but I recalled them as much as I could”. Further, he agreed specifically with respect to the photographs of the MRS that there were no geographical features enabling him to identify the location where he was when the photographs were taken.  He also accepted that in undertaking the Google Maps location-pinning exercise, there may have been some elements he had forgotten or errors in his recollection of the locations, saying that “[t]hey might have been, I might not have been 100 per cent accurate pinning them on the actual, on the map, but I remember the locations quite well”.  Finally, Mr Maderski accepted, by reference to surveyor photographs, that the vegetation photographed by the surveyor between the incorrect and corrected pins is very different.

718 In short, therefore, while the legitimacy of the detection itself (ie the fact of Mr Maderski having photographed MRS) is not in issue, I cannot reliably conclude that Mr Maderski’s attempts to recall the location at which the photographs were taken, and his pinning of the locations on Google Maps some six months after the photographs were taken, is reliable.  It follows that, while I accept that generally MRS was detected to the south of the Development Footprint, the location of that detection has not been proved. Accordingly, as the respondent submits, Mr Maderski’s evidence “cannot be relied upon to draw any inferences about the actual location of the MRS detection, the metes and bounds of MRS habitat or the need for buffer zones”.