Australia: Court confirms need for cumulative impact assessment in development application

Proponents must evaluate cumulative impacts of a proposed development and the requirement for specific environmental assessments, such as a species impact statement, when preparing a development application.

On 11 March 2016, the NSW Land and Environment Court in Friends of Tumblebee Incorporated v ATB Morton Pty Limited (No 2) [2016] NSWLEC 16 determined that a development consent granted for the proposed construction of a steel fabrication workshop and distribution facility in the Hunter Economic Zone was invalid as it did not include a species impact statement (SIS).

A SIS is required when a proposed development is likely to significantly affect a threatened species or its habitat under the Threatened Species Conservation Act 1995 (NSW). The Court held that the clearing of 3.2 hectares of potential habitat as part of the Development significantly affected the Regent Honeyeater, a critically endangered species, and consequently a SIS should have accompanied the development application (DA).

As a SIS was not prepared for the Development, the consent was declared invalid. The decision required the proponent to re-lodge the DA with a SIS to allow for the council to make a fully informed decision as to the ecological impact of the Development.

The decision confirmed that proponents should consider cumulative impacts in any development application and take into account the cumulative impacts of development in the surrounding area. This requirement may not have been closely considered by developers in the past (and was not appropriately assessed by the proponent in this case).

Assessing the cumulative impacts of a proposed development in the context of other development in the surrounding area may alter the nature or scope of any potential cumulative environmental damage for the proponent's proposal.

When is a SIS required?

Under section 78A(8)(b) of the Environment and Planning Assessment Act 1979 (NSW) (Planning Act), an SIS is required for development that is:

• on land that is, or a part of, critical habitat; or
• likely to significantly affect threatened species, populations or ecological communities, or their habitats.

Justice Pepper also held that the Court must also consider, but is not limited to, the factors in section 5A of the Planning Act, particularly the seven part test in section 5A(2) and other relevant matters, including the cumulative impacts of the Development and the potential application of the precautionary principle.

What must a SIS include?

A SIS must include specific information regarding threatened species and their populations, as found under section 110 of the Threatened Species Conservation Act, including details of the:

• nature, extent, location, timing and layout of the proposed development;
• threatened species present in the area of the proposed development which are likely to be affected by the development, including details of its conservation status, processes threatening its survival, its habitat requirements, recovery plans applying to it, estimates of the regional population of the species, representation in conservation reserves and the distribution of the species;
• habitat of the affected species and likely effect of the development on the species and the habitats, considering the cumulative effects;
• feasible alternatives to the development and proposed measures to mitigate any adverse effects; and
• approvals that must be granted before the development can be carried out.

Cumulative impacts to the environment

The Court held that the cumulative impact of any development is a relevant matter to be taken into account as part of the seven part test under the Planning Act, and also when separately deciding whether a SIS is necessary under section 78A(8)(b) of the Planning Act.

The seven part test under the Planning Act requires a consent authority to take into account a number of factors in making a determination. Key factors that were considered in respect of the Development included:

• any adverse effect of the lifecycle of a threatened species resulting in the likely risk of extinction;
• the extent to which a threatened species habitat is likely to be removed or modified, the likely fragmentation or isolation of the habitat from other areas of habitat and the importance of the habitat to the long-term survival of the species in the area; and
• whether the action proposed is, or is part of, a key threatening process or is likely to result in, or exacerbate, a key threatening process (for example, clearing of native vegetation).

Justice Pepper held that the Development satisfied each factor listed above and determined that clearing associated with the Development, and surrounding approved developments in the Hunter Economic Zone, would collectively have a significant impact on the Regent Honeyeater.

The likely adverse impact of native vegetation clearing in the Hunter Economic Zone, including the Development, was stated to place the local Regent Honeyeater population at risk of extinction.

What is the precautionary principle?

The precautionary principle requires decision-makers to be cautious where there is uncertainty concerning the nature or scope of potential serious or irreversible environmental damage.

Justice Pepper's consideration of the precautionary principle, and any cumulative impacts, allowed for the conclusion that there was a real chance or possibility that the Development would have an adverse effect on the Regent Honeyeater. In adopting this principle, Justice Pepper noted the existence of scientific uncertainty and concluded that the Development had a threat of serious or irreversible environmental damage and potential extinction of the species.

What should proponents do when preparing a DA?

The Court's decision highlights that proponents should be aware of a number of key environmental considerations when preparing a DA, such as:

• Reducing uncertainty: Where possible, proponents should undertake appropriate environmental assessments to reduce any uncertainty concerning the nature or scope of any potential environmental damage. This includes addressing any further uncertainty that may arise from any such assessment that is to form part of a DA.
• Assessing cumulative impacts: Proponents must consider that minimal environmental impacts of a proposed development (when assessed in isolation) may increase when the cumulative impacts of development in the surrounding area is taken into account. Accordingly, proponents should carefully consider if a SIS is required, even where the environmental impact may initially appear insubstantial.
• Engaging qualified experts: When engaging an expert to prepare a SIS, proponents should ensure that the expert has specific knowledge about the species affected. Justice Pepper favoured the evidence of the applicant as the expert's qualifications were specific to the study of woodland birds, including the Regent Honeyeater. Conversely, Justice Pepper was critical that the curriculum vitae of the respondent's expert did not reveal any experience regarding the scientific study of birds. Comments made by Justice Pepper emphasise the need for proponents to select appropriately qualified and impartial experts.

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