I reject the submission. The provision allowing the Director-General to seek further information
from an applicant is clearly designed to assist the decision-maker and supplement the fauna
impact statement in any area specified by the Director in his request. Like an environmental
impact statement, a fauna impact statement is not the decision; rather it is a tool to aid the
decision-maker in his/her task. The Schedule of endangered species is not static; see S.92A(3)
and S.94. Indeed, changes to the listed endangered fauna may be illustrated by this case. When
the fauna impact statement was compiled and submitted, the Diamond Python was listed and thus
was included in the statement. The Giant Burrowing Frog, however, was not listed and not
discussed in the statement. In December 1992, after the fauna impact statement was completed,
but before the further information was requested by the Director General, the Diamond Python
was removed from the list and the Giant Burrowing Frog added. The additional information
forwarded by the Council sought to describe and assess that creature.
In a dynamic situation, such as this, it cannot realistically be suggested that when a new species is
added to the list, a new fauna impact statement is required. Such a requirement would make
nonsense of the system, render it almost unworkable, overly expensive and subject to
unreasonable delays. In my opinion a fauna impact statement can be supplemented by further
information required by the Director-General and that information can be taken into account by
the Court in assessing the question of the legal adequacy of the process. One aspect, however, is
of concern. The failure to advertise the further information may have deprived members of the
public of the opportunity to participate. Although not required by the legislation, it would have
been preferable for the National Parks and Wildlife Service to have re-advertised especially since
a new species was included - the Giant Burrowing Frog. But it is clear that most, if not all,
objectors who made written submissions were aware that information had been provided by the
Council to the National Parks and Wildlife Service, although not its full content. Further
comprehensive public submissions were made to the National Parks and Wildlife Service. This is
not a class 4 judicial review proceeding under the Environmental Planning and Assessment Act
where the discretion inherent in S.124 is applicable, nor is it a proceeding brought under S.176A
of the National Parks and Wildlife Act alleging a breach of the Act. In my opinion the omission to
advertise the further information does not cause the fauna impact statement to be legally
inadequate or otherwise fatally flaw the decision-making process.
Mr. Dodd further submits that the fauna impact statement is inadequate in failing to address
sufficient species and in sufficient detail. He maintains that the fauna surveys were inadequate
and there has been a failure to provide a full description of the affected fauna and their habitat.
Moreover, he contends that there is an inadequate description of the actions involved in the
proposal. He draws attention to the fauna impact statement not including the development consent
conditions, taking account of their import and including an examination of the proposed Illaroo
Road deviation. In my opinion the criticisms catalogued by Mr. Dood are insufficient to lead the
Court to conclude that the fauna impact statement is legally inadequate. It may not be perfect, but
it does not need to be. The fauna impact statement includes a reasonably thorough discussion of
the significant issues and likely faunal consequences. It appears to me that the fauna impact
statement, read with the further information, satisfies the tests: collected in Schaffer Corporation
vs Hawkesbury City Council Ltd (at 30-32). In my opinion the fauna impact statement is legally
adequate and not in breach of S.92D (1) or S.92D (2) of the Act. Accordingly, the Court may
proceed to the merit review of the application.
THE MERITS
Since as far as I am aware, this is the first appeal under S.92C of the National Parks and Wildlife
Act, it may be useful to examine the Court's role in such proceedings. In determining an appeal