INTRODUCTION
Shoalhaven City Council (the Council) applied to the Director-General of the National Parks and
Wildlife Service for a licence to take or kill endangered fauna. The Director-General granted a
general licence subject to conditions. Any person who made a submission pursuant to s 92B(5) of
the National Parks and Wildlife Act 1974 (NSW) as amended (the Act) may appeal to the Court if
dissatisfied with the decision. Ms May Leatch objected by filing the subject Class 1 application in
court on 23rd July 1993.
The need for a licence arises from the granting of development consent by the Council to its own
proposal to construct a link road through North Nowra to the Princes Highway. The proposed
road includes a 60 meter bridge over Bomaderry Creek. In support of its application for a licence
the Council submitted a fauna impact statement to the National Parks and Wildlife Service
pursuant to s 92B(2) of the Act. The fauna impact statement was advertised in February 1993 and
a number of submissions, including one from the applicant, were received by the National Parks
and Wildlife Service. After consideration of the licence application the National Parks and
Wildlife Service sought further information from the Council. A supplementary submission was
provided by the Council on 19 May and on 24 June 1993 the Director-General formally notified
the Council that a general licence under s 120 of the Act had been granted for a period of ten
years subject to a number of ameliorative conditions. Notice of the issue of the licence was
published in the Government Gazette of 2 nd July 1993.
THE LEGISLATIVE FRAMEWORK
The National Parks and Wildlife Act was extensively amended in terms of its fauna protection
provisions by the enactment of the Endangered Fauna (Interim Protection) Act 1991 (NSW): The
amending legislation was in part a response to the decision of the. Court in Corkill vs Forestry
Commission (NSW) (1991) 73 LGRA 126, affirmed in the Court of Appeal in Forestry
Commission (NSW) vs Corkill (1991) 73 LGRA 247.
It may be useful to attempt a brief summary of the relevant provisions of the Act. Section 92
makes the Director General the authority "for the protection and care of fauna". A scientific
committee was appointed pursuant to S. 92A to review and continue to review Schedule 12 of the
Act, which provides a list of endangered fauna. Section 92A(5) and S. 92A(6) respectively
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). Only the Director General may
issue a licence to take or kill endangered fauna (S. 92B). Section 5 of the Act defines "take" as
follows:
"'take', in relation to any fauna, includes hunt, shoot, poison, net, snare, spear, pursue,
capture, disturb, lure or injure, and without limiting the foregoing also includes
significant modification of the habitat of the fauna which is likely to adversely affect its
essential behavioural patterns;"
It may be seen that the definition includes habitat modification discussed in Corkill.
In considering a licence application the Director-General must, pursuant to S.92B(6), take into
account the fauna impact statement, any submissions received, the factors listed in S. 92A(5) and
S.92A(6) and any reasons given by the scientific committee under s 92A(3)(d). Subsection (6)
allows the Director-General to require "further information concerning the proposed action and
the environment to be affected from the applicant...". The Director-General may grant the
application unconditionally or subject to conditions or refuse the application (s 92B (8». Section