Microsoft Word - Casebook on Environmental law

THE COMMONWEALTH OF AUSTRALIA

LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

LEATCH...........................................................APPELLANT

VERSUS

NATIONAL PARKS,

WILDLIFE SERVICE AND

SHOALHAVEN CITY COUNCIL........................RESPONDENTS

BEFORE: STEIN, J.

Fauna protection – license to take or kill endangered fauna- road construction – objector appeal
against grant of license – fauna impact statement – adequacy – factors to be taken into account –
benefits of development to be balanced against likely loss of endangered species.

This appeal sought to challenge a license issued by the Director General of the National wildlife
Service to the Shoal Haven City Council to take or kill protected fauna in the course of carrying
out a road development project through the National Park without presenting among others an
environmental impact statement.

HELD:

1. A license to take or kill endangered fauna should not in most circumstances be “general”
   in its coverage of endangered species but should specify the species which it permits to
   be taken.


2. The period of a license to take or kill endangered fauna should be confined, so far as
   reasonable, because of possible changes in the physical environment and state of
   scientific knowledge.


3. The provisions allowing the Director General to seek further information from an
   applicant is clearly to assist the decision maker in his task to inform the public and enable
   its participation and to supplement the fauna impact statement.


4. When there is a threat of significant reduction or loss of biodiversity, lack of full
   scientific certainty should not be used as a reason for postponing measures to avoid such
   a threat.


5. Application of the precautionary principal appears to be most apt in a situation of a
   scarcity of scientific knowledge of species population. The state of knowledge is such
   that one should not grant a license to “take or kill” the species until much more is known.

Appeal allowed and license denied.