Both the Director-General and the Council submit that the fauna impact statement can be
amplified by further information sought and provided under S.92B(6) of the Act. They also
submit that the standard required for a fauna impact statement is not intended to be as rigorous as
that required for an environmental impact statement under the Environmental Planning and
Assessment Act 1979 (NSW).
I am unable to discern any ambiguity in the ordinary meaning of the statutory provisions.
Accordingly the extrinsic materials relied on- and contained in the explanatory note and second
reading Speech are of no assistance. Even if taken into account they don't take the issue of
construction any further. I fail to perceive why any different or lesser standard should be applied
to a fauna impact statement as opposed to an environmental impact statement. While the scope
and purpose of the two Acts (the National Parks and Wildlife Act and Environmental Planning
and Assessment Act) is different, the purpose of both statements is similar - to assist the decision-
maker in its task and to inform the public and enable its participation. A fauna impact statement is
a narrower document than an environmental impact statement, confining itself to impacts .9n
endangered fauna. This is made plain by s 92D(4).which provides that if an environmental impact
statement, prepared under Pt 4 or Pt 5 of the Environmental Planning and Assessment Act,
addresses the matters set forth in s 92D(l), no separate fauna impact statement is required.
In my opinion the same tests of adequacy developed in relation to environmental impact
statements should apply to fauna impact statements. Nothing in the subject matter, scope and
purpose of the National Parks and Wildlife Act, particularly the amendments inserted by the
Endangered Fauna (Interim Protection) Act, lead to a contrary conclusion. Indeed, the reverse is
the case. This means that the tests laid down in the authorities, in particular Prineas v Forestry
Commission of New South Wales (1983) 49 LGRA 402, are relevant.
Mr. Preston (supported by Mr. Webster) submits that the fauna impact statement, together with
the supplementary information, is adequate in law to comply with the requirements of the Act and
satisfy the twin goals of the exercise. Assuming a deficiency in the fauna impact statement, Mr.
Preston says that it would be ridiculous if this could not be overcome by the provision of
additional information referred to in the closing words of S.92B(6). While acknowledging that the
additional information was not advertised he notes that there is no statutory requirement to
advertise such material.
The issue of the jurisdiction of the Court in a class I appeal to consider the validity of an
environmental impact statement was exhaustively examined by the Chief Judge of the Court,
Pearlman J in Schaffer Corporation Ltd vs Hawkesbury City Council (1992) 77 LGRA 21 at
28.30. The decision of the Court of Appeal did not affect her Honour's judgment on the issue. I
agree with Pearlman J's analysis of the legal situation and her conclusion:
"But what is in issue in this case is not a question of relief for breach, but a question of whether or
not, exercising the functions of a consent authority, the Court would grant consent to the
development application. In pursuing that issue, one of the questions for determination is whether
or not .there is a valid environmental impact statement on which a grant of consent by the Court
is (sic) so exercising its functions can be founded.'".
Mr. Dodd submits that the additional information cannot be relied on to bolster the environmental
impact statement. He says that the ability of the Director-General to seek the further information
assumes an adequate fauna impact statement. The provision (in a 92B(6) is merely an enabling
one to allow the Director to seek additional information which may not necessarily be included in
a fauna impact statement but which would assist him in making a decision on the application.