LEATCHVERSUSNATIONAL PARKS AND WILDLIFE SERVICE AND SHOALHAVEN CITY COUNCIL
[LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES]1 st -5th, 23 rd November 1993STEIN, J.
Fauna Protection - Licence to take or kill endangered fauna - Road construction - Objector appeal
against grant of licence - Fauna impact statement - Adequacy - Factors to be taken into account -
Benefits of development to be balanced against likely loss of endangered species - National Parks
and Wildlife Act 1974 (NSW), ss 5, 92, 92A-92D, 99,120.
Section 92 of the National Parks and Wildlife Act 1974 (NSW) makes the Director-General of the
National Parks and Wildlife Service the authority for the protection and care of fauna. Under s
92A a scientific committee was appointed to review and continue to review Schedule 12 of the
Act which provides a list of endangered fauna. Subsections (5) and (6) specify matters which the
committee must have regard to in deciding to place species of fauna on the schedule as
"threatened" (Pt 1) or "vulnerable and rare" (Pt 2). Section 92B provides that only the Director-
General may issue licenses to take or kill endangered fauna. In considering a licence application
the Director-General must take into account the fauna impact statement, any submissions
received, the factors listed in S. 92A(5) and (6) and any reasons given by the scientific committee
under S. 92A(3)(d). The Director-General may require further information and may grant the
application unconditionally or subject to conditions or may refuse it. Section 92C provides a right
of appeal to the Land and Environment Court by an applicant for a licence to which S. 92A
applies or by any person who made a submission under subs (5) thereof. Section 92D sets out the
requirements for a fauna impact statement. Section 99 provides substantial penalties for taking or
killing endangered fauna without authority of a licence. Section 120 enables licenses to be issued
to take or kill any protected fauna in the course of carrying out specified development or
activities.
On 25 th February 1993, Shoalhaven City Council applied to the Director-General of the National
Parks and Wildlife Service for a licence to take or kill endangered fauna.
The need for the licence arose from the granting of development consent by the Council to itself
for the construction of a link road through North Nowra to the Princes Highway, including a
bridge over Bomaderry Creek. The licence application was supported by a fauna impact statement
pursuant to s 92A of the National Parks and Wildlife Act. The Director-General granted the
licence subject to conditions and an objector who had made a submission appealed, submitting
that the fauna impact statement was invalid or legally inadequate as failing to comply with s 92D
of the Act. In particular, it was submitted that there had been a failure to include "to the fullest
extent reasonably practicable" a description of the fauna affected by the actions and the habitat of
the fauna.
HELD:
(l) The same tests of adequacy in relation to environmental impact statements under the
Environmental Planning and Assessment Act 1979 (NSW) should apply to fauna impact