permissible approach is to conclude that the state of knowledge is such that one should not grant a
licence to "take or kill" the species until much more is known. It should be kept steadily in mind
that the definition of "take" in s 5 of the Act includes disturb, injure and a significant modification
of habitat which is likely to adversely affect the essential behavioural patterns of a species. In this
situation I am left in doubt as to the population, habitat and behavioural patterns of the Giant
Burrowing Frog and am unable to conclude with any degree of certainty that a licence to "take or
kill" the species should be granted. Accordingly, the licence under s 120, in so far as it seeks a
permit to take or kill the Giant Burrowing Frog in the course of carrying out the development, is
refused.
The other principal species involved in the licence application is the Yellow-bellied Glider
(Petaurus australis). There is no doubt about its presence, although the Council's consultants
believe that only two small groups inhabit the area. While the gliders are expected to use all the
eucalypti species present, the woodland, are another food resource. Mitchell McCotter accept that
the road may be a barrier to movement of gliders attempting to utilise food resources. A proposal
for the erection of gliding poles to help facilitate movement of the gliders has been made. This is
accepted to be a somewhat novel ameliorative strategy which is yet to be the subject of any
published research. The efficacy of such a measure is therefore unknown.
The Yellow-bellied Glider has been listed as a fauna of special concern since the National Parks
and Wildlife Act was passed in 1974. In 1991 it was placed on Pt 2 of Schedule 12 as vulnerable
and rare. This status was confirmed by the scientific committee in 1992. There is little doubt that
the Grey Gum forested areas of the gorge are likely to represent core areas of favoured habitat for
the gliders. It is also likely that the population of Yellowbellied Gliders has been isolated in the
study area and cut off from other populations of the species for some years. On the one hand the
road will likely split and accordingly further reduce their habitat. On the other hand the Council's
case suggests that their long-term survival is threatened in any event by increasing residential
development and the possibility of the construction of the Nowra by-pass in fifteen to twenty
years time. These prognostications are difficult for the Court to place great store in because they
seem to be assuming that the endangered fauna may die out anyway at some future point in time,
so why worry about conserving them now.
In the final addresses made to the Court all parties - the applicant, the Director and the Council
appeared to accept that the Yellow-bellied Glider was likely to be adversely affected by the
proposed road, that is, within the definition of "take" in s 5. This is no doubt why the Council
applied for and the Director granted a licence under s 120 of the Act to take or kill the species. I
agree that the evidence leads to the inevitable conclusion that the construction of the road and its
development is likely to involve the taking or killing of the Yellow-bellied Glider.
The question for the Court is therefore, should the licence be granted, and if so upon what
conditions? In this regard I would suggest that a licence should not in most circumstances be
"general" in its coverage of endangered species but should specify the species which it permits to
be taken. I think this view is shared by the National Parks and Wildlife Service, according to the
submission of Mr. Preston. It makes good sense not to grant a licence in relation to all endangered
fauna when some species may be later located which were not the subject of a fauna impact
statement or added to the schedule by the scientific committee at a date after the issue of a general
licence. Further, I note that the licence in question was issued for a period of ten years. The
development consent in this case does not lapse if it is physically commenced within five years of
its grant. Accordingly, a period of five years or thereabouts would probably be an appropriate
period for a licence. The length of a licence should be confined, so far as reasonable, because of
possible changes in the physical environment and state of scientific knowledge.