have stated this may entail, cannot be said to be an extraneous matter. While there is no express
provision requiring consideration of the "precautionary principle", consideration of the state of
knowledge or uncertainty regarding a species, the potential for serious or irreversible harm to an
endangered fauna and the adoption of a cautious approach in protection of endangered fauna is
clearly consistent with the subject matter, scope and purpose of the Act.
Upon an examination of the available material relevant to the Giant Burrowing Frog (Heleioporus
australiacus) and the knowledge of the frog in this particular habitat, one is driven to the
conclusion that there is a dearth of knowledge. We know with reasonable certainty that the call of
a male frog was heard by Dr. York and Mr. Daly in 1992. We know that it is likely that there is a
population of the frogs in the area. Webb, an expert on the frog, says that the amphibian is known
to move great distances from breeding areas when foraging for food at night. While its prime
habitat appears to be a gorge or creek environment, the Giant Burrowing Frog may forage wider a
field into drier areas. It is not surprising therefore that its call was heard in an area some distance
from the gorge. Dr. York's statement that the degradation of the gorge habitat leads to the
conclusion that it is not prime habitat for the species is open to question and is not self-evident to
me. Dr. York does, however, make the point in his report (exhibit MI) that the nature and extent
of the population of the Giant Burrowing Frog in the study area are unknown. Notwithstanding,
he says that it is possible to make a reasonable assessment of the possible impacts of the road
because of the known habitat requirements. Dr. York sees a very small loss of foraging habitat
and no loss or interference with access to food or breeding patterns.
Garry Webb disagrees with a number of conclusions of Dr. York. He accepts that the species is
notoriously difficult to find but is critical of the limited reptile and amphibian survey, which is
certainly inadequate to determine the regional significance of its presence at Bomaderry Creek.
Since it is listed as a rare and vulnerable species, Mr. Webb says that its conservation should be
given a high priority. I accept his opinion. The frog is known in only a small number of locations
in the Shoalhaven region. Apart from the present case, only two sightings have been made - at
Jervis Bay and 15 kilometers south-east of Bowral in 1963. Its distribution is obviously patchy
and its recent listing by the scientific committee understandable.
In the opinion of Mr. Webb the road would present an insurmountable barrier to the dispersion of
frogs at favourable times and divide suitable habitat into small isolates. He doubts the relevance
of any of the proposed mitigating factors to frogs and knows of no study which supports the
efficacy of underpasses for frogs. (In this regard Mr. Webster handed up a beautifully presented
booklet entitled Amphibienschutz from BadenWurttemberg. Its photographs include frogs and
highway underpasses. Unfortunately the text is in German, and notwithstanding my ancestry, I
am unable to comprehend its import.)
Mr. Webb also opines other potential impacts on the Giant Burrowing Frog. However, he
concludes his report by emphasising the inadequacy of the date to quantify the extent and size of
the population in the area "nor to assess the potential impact of the proposed road". In his view
there has been an inadequate survey, an inadequate assessment of potential habitat and an
inadequate assessment of the impact of the development on the survival of the population of the
giant Burrowing Frog. Again, I accept and prefer his opinion.
Given that the Giant Burrowing Frog has only recently been added to the schedule of endangered
species by the scientific committee as vulnerable and rare, and noting the factors set forth in s
92A(6) to guide the committee's deliberations, caution should be the keystone to the Court's
approach. Application of the precautionary principle appears to me to be most apt in a situation of
a scarcity of scientific knowledge of species population, habitat and impacts. Indeed, one