the northern route via West Canberra Road was screened out too early in the process to be
properly considered as a real alternative to the preferred route.
This is made more apparent from Mr. Nairn's evidence in reply, which includes the option of a
Pitt Street extension north-east through Crown land to connect with West Cambewarra Road.
This proposed extension of Pitt Street is unlikely to pass through any environmentally sensitive
land and is well clear of the Bomaderry gorge. If constructed, it will take people from the Pitt
Street precinct and beyond well onto the northern option for the link road and, for large numbers
of residents, would provide a real alternative to IIIaroo Road. It seems to me that insufficient
attention has been given to the northern route, especially coupled with the Pitt Street extension
canvassed by Mr. Nairn in his report in reply (exhibit K2 - figure 4 alternative I )). The route also
needs to be considered in the context of the proposed sports complex in West Cambewarra Road
near the intersection with IIIaroo Road. In addition, the northern option leaves the Bomaderry
Creek gorge area intact rather than split into segments.
CONCLUSION
It is the context of a thorough examination of alternatives, especially ones which have minimal
environmental impact, that one must balance the issue of a licence to take or kill endangered
fauna. The need for a link road is accepted but I question, when all pertinent factors are weighed
in the balance, whether the need is for this particular road. The issue of the best route, taking
account of all relevant circumstances, including environmental factors, needs to be carefully
assessed. It appears to me that alternatives need to be further explored. I am not satisfied that a
licence to take or kill the Yellow-bellied Glider, or any of the other species discussed in the fauna
impact statement, is justified. The applicant for such a licence needs to satisfy the Court, on the
civil standard on the balance of probabilities, that it is appropriate in all the relevant
circumstances to grant the licence. I am not convinced of the strength and validity of the
economic arguments presented to the Court by the Council, nor do I take such a predictable view
of human behaviour as Mr. Nairn.
Following an examination of the evidence, I am not satisfied that a licence under s 120 of the
National Parks and Wildlife Act to take or kill endangered fauna should be granted to the
Council. However, it should be emphasised that refusal of this licence application should not
necessarily be assumed to be an end of the proposal. Further information on endangered fauna
and advances in scientific knowledge may mean that a licence could be granted in the future.
Also, changes in the proposal and ameliorative measures may lead to it different assessment. This
case has been determined, as it must, on the evidence produced to the Court at the hearing and the
Court cannot speculate as to the future.
Accordingly the appeal is upheld and the licence refused. The exhibits may be returned. Costs are
reserved.
Appeal allowed and licence refused
Solicitors for the applicant: Bartier Perry & Purcell.
Solicitors for the respondent: J A Gibbins (National Parks and Wildlife Service).
Solicitors for the second respondent (the Council): Morton & Harris (Nowra).
TFMN