present appellant. The fauna impact statement concluded that the site was the habitat of
endangered species. However, as it was isolated from other areas of suitable habitat, the long term
viability of the species was questionable. Impacts on endangered fauna were not considered
sufficient to prevent the construction of the proposed road. Mitigation measures were
recommended.
The public submissions drew attention to a number of matters including the rare plant species.
The Shoalhaven branch of the Australian Conservation Foundation was critical of the fauna
impact statement and drew attention to the likely; occurrence of the giant Burrowing Frog which
had been added to Schedule 12 by the scientific committee in December 1992, after the fauna
impact statement was prepared. The Total Environmental Centre, in a detailed submission, was
also critical of aspects of the fauna impact statement and drew attention to the Precautionary
Principle.
The fauna impact statement was assessed by the National Parks and Wildlife Service's Natural
Resources Coordinator (Southern Region), Ms Liz Dovey. She noted that the Diamond Python,
referred to in the specification, had been removed from Schedule 12 in December 1992 but the
Giant 10 Burrowing Frog had been added and would need to be assessed. The officer critically
examined the fauna impact statement and found it deficient in a number of aspects. As a result the
National Parks and Wildlife Service requested further information from the Council (5 May
1993). In response a further report of Mitchell McCotter was provided to the National Parks and
Wildlife Service by the Council.
The report referred to the Giant Burrowing Frog but stated that since the gorge area had been
substantially degraded it was "not considered prime habitat for the species". The document
continued: "... it is considered therefore that the proposed road will not impact upon this species."
The further information did not note that Council's consultants, Dr. York and Mr. Daly, had heard
the call of the Giant Burrowing Frog in May 1992 when spotlighting for gliders. Although not
expressly required, no mention was made of the occurrence in the fauna impact statement. The
position where the frog was heard was north of the proposed road alignment (to the west of the
gorge) and on the edge of the Grey Gum woodland adjacent to a dry scrub community dominated
by White Kunzea Ambigua and Tea-tree. The report concluded that on balance the proposed road
best met environmental and economic objectives. The integrity of the gorge could be protected by
a range of ameliorative measures, including an extensive buffer conservation zone.
The further information provided was not advertised, although news of it appears to have leaked
and further public submissions were received by the National Parks and Wildlife Service. Ms
Dovey again assessed the material, concluding much of it to be inadequate. However, the
Director determined to grant a general licence subject to conditions.
While the process of the Court on appeal is by way of re-hearing it is useful to examine the
decision-making process of the National Parks and Wildlife Service. The decision-making
documents (exhibit A, documents 37 and 38) considered that direct impacts of the development
would likely result in the killing or injuring of fauna. Indirect impacts of the development
included habitat fragmentation and disturbance to individual animals from noise and light.
Document 37 contains the following conclusions:
"Overall, it is considered that the additional information provided by Shoalhaven City Council,
when combined with the information in the fauna impact statement, is adequate to permit a
decision to be made on this licence application. Based on this information, it is considered that
the taking or killing of endangered fauna is likely to occur if the road proposal proceeds. This is