92D sets out the requirements of a fauna impact statement. Subsection (1) provides:
(b) be signed by the person who prepared it; and
(c) include, to the fullest extent reasonably practicable, the following:
(i) a full description of the fauna to be affected by the actions and the habitat used by the fauna;
(ii) an assessment of the regional and statewide distribution of the species and the habitat to be
affected by the actions and any environmental pressures on them;
(iii) a description of the actions and how they will modify the environment and affect the essential
behavioural patterns of the fauna in the short and long term where long term encompasses the
time required to regenerate essential habitat components;
(iv) details of the measures to be taken to ameliorate the impacts;
(v) details of the qualifications and experience in biological science and fauna management of the
person preparing the statement and of any other person who has conducted research or
investigations relied upon."
Substantial penalties ate provided by s 99 of the Act for taking or killing endangered fauna -
imprisonment and/ or a fine. It is a defence if the act was done under or in accordance with a
general licence issued under s 120. The latter section permits licenses to be issued to take or kin
any protected fauna in the course of carrying out specified development or activities. A general
licence may, but need not, specify the species of fauna, which may be taken or killed under its
authority.
On any appeal under S.92C the Court must take into account the factors set out in s 92B (6) viz,
the fauna impact statement, submissions received by the Director General, the factors set out in S.
92A(5) and S.92A(6) (which include "any other matter which the Committee considers
relevant"), any reasons of the committee provided under S.92A(3)(d) and any further information
provided under S 92B(6). Section 92C(2) makes it clear that S.92B(6) does not limit S.39 of the
Land and Environment Court Act 1979 (NSW). Relevantly this section provides:
"(2) In addition to any other functions and discretions that the Court has apart from this
subsection, the Court shall, for the purposes of hearing and disposing of an appeal, have
all the functions and discretions which the person or body whose decision is the subject
of the appeal had in respect of the matter the subject of the appeal.(3) An appeal in respect of such a decision shall be by way of rehearing, and fresh evidence or
evidence in addition to, or in substitution for, the evidence given on the making of the decision
may be given on the appeal;
(4) In making its decision in respect of an appeal, the Court shall have regard to this or any other
relevant Act, any instrument made under any such Act, the circumstances of the case and the
public interest.
(5) The decision of the Court upon an appeal shall, for the purposes of this or any other Act or
instrument, be deemed, where appropriate [to be that of the Director General?]