Environmental Impact Assessments
There are many ways to assess the potential impact of a development on flora and fauna. Various national and state government agencies provide a legal framework to assess such impacts.
The first stage of impact assessment is to find out what waterways, natural vegetation and fauna are on your site. A survey will find these features, and the assessment of impact applies the development proposal to these features. Thus, the Seven (previously Eight) Part Test of significance is applied after these two matters are clarified.
A "significant" effect will cause delays and add cost to a development, so it is preferable to adopt a strategy of avoiding a significant impact. The means to achieve this is to:
No, it is not wise to pretend that "there is nothing there".
State Government law in New South Wales requires a Council to consider the impact of a development proposal on the natural environment, among other things. This includes flora and fauna, and their habitat.
The Development Application and flora and fauna report you submit to Council needs to be clear and comprehensive, so that Council can make an informed decision on whether to permit your proposal, with all its impacts. Not every local Council has staff and Councillors who are highly skilled in environmental issues, so the report may be referred to either a consultant engaged by Council, and/or to OEH for critical comment.
What could you do to prepare a report?
The process could follow steps such as:
Check published maps and data bases for vegetation types, and species distributions.
Visit the site to see what water resources, soil, fauna and vegetation actually occurs there.
Create an expected species list for the site and the surrounding area, based on habitat types.
Design a survey to detect all the species listed.
Survey the site in weather conditions and season appropriate to find these species.
Write a report which details all the above, and the results of the survey.
Assess the likely and possible impacts of the proposed development both for the site, and its surrounding area.
Identify constraints to development resulting from habitat of Threatened Species, sensitive vegetation communities, or other environmental issues targeted by Council regulations or planning laws.
Find out what other considerations (e.g. bushfire, riparian zones) or government planning policies will affect your land.
Work out ways to avoid, reduce, or ameliorate the impacts by designing around any significant constraints.
Discuss your plan with Council to see if there are significant issues they need to address.
Prepare Seven-part Tests for Threatened Species, based on your final design.
What is in a report?
There is a range of issues to be covered in any flora and fauna report, such as:
Maps should show the area surveyed, and the vegetation and fauna habitat on the site and surrounding areas.
If there are Threatened Species (or their habitat) nearby or on your site, maps should show their habitat, where they are active for breeding, foraging, migrating, sheltering and so on, as well as how your site links to nearby areas of habitat for the species.
OEH has published a guidelines document (2005) to detail how such matters are to be addressed in a report.
Is your proposal a Big Deal? At present in New South Wales the method of impact assessment used is known as the Seven-part Test, which is section 5A of the Environment Planning and Assessment Act 1979. This is sometimes also called the "test of significance". The test of significance provides a way of assessing the ways in which an activity will impact on Threatened flora, fauna, ecological communities and endangered populations (listed as either Vulnerable or Endangered in the NSW Threatened Species Conservation Act 1995). This gives a result of either "significant" or "not significant".
If Council asks you for an "7-Part Test" you need to know what flora and fauna are actually using your development site, and what habitat occurs there. We write a Flora and Fauna report for you, outlining what animals and plants are found on your property and include Seven Part Tests as required. A Seven Part Test is required for each community, species or population that occurs on your land, or for which suitable habitat occurs. Any area of bush may require from five to twenty or more Seven Part Tests.
Among the members of our team we have expertise ranging over a wide number of the species which will require a Seven Part Test. From experience and the knowledge base which has built up over many years we can judge the habitat and advise when a Seven Part Test is necessary. We can then advise how to eliminate risk or avoid the impact on threatened species.
You may hear the term "preliminary assessment". This is a report of the condition of the site, without an impact assessment in the form of Seven-part Tests. An impact assessment can only be prepared once there is a definite proposal for your land.
How to write a Seven-part Test
A Seven-part Test is required if habitat occurs on a site for a locally occurring threatened species, Endangered Ecological Community, or an Endangered Population. It does not matter if the species has not been found, or whether it lives some distance away; a Seven-part Test is still required.
Prepare a species profile from literature and local knowledge. For example, it helps to know the home ranges of groups of Yellow-bellied Gliders, and the location of den trees. In order to find out all this, a detailed flora and fauna survey is required, at the appropriate time of year.
A Seven-part Test can be written for an Endangered Ecological Community (EEC), an Endangered Population, a single species, a group of taxonomically similar species, or a group of ecologically similar species. Species with similar ecological requirements, and species that are similar to each other biologically, can be grouped for one Test. For example, the insectivorous forest bats, or some forest owls may be dealt with under a single Seven Part Test. It is not appropriate to write one Seven Part Test for everything.
A map is to be prepared showing the locations of known records of threatened species, usually in a five-kilometre radius of the site (the "locality"). There are various databases for this purpose, but data supplied to consultants has a three-month life span. Another map will show the distribution of habitat and individuals of species on and near the site. A methodology map will illustrate the methods and extent of the site survey. Finally, a map can be prepared showing the extent and impact of a development proposal in relation to the habitat both on the site and nearby.
Guidelines for completing the 7-part Test are available from OEH. The notes below are additional comments based on our experience.
The Seven-part Test questions are as below:
a) in the case of a threatened species, whether the action proposed is likely to have an adverse effect on the life cycle of the species such that a viable local population of the species is likely to be placed at risk of extinction,
Yes or No? This generally requires an extensive explanation of how the species could use the site if it does not occur, and how it does use the site if a population occurs there. The viable local population is that which lives on the site, as defined by the boundaries of the land, or the larger study area. Issues include seed banks, germination and establishment of juvenile plants, reproduction, dormancy, roosting, feeding, migration, dispersal, fire regimes and structural habitat. In the case of an endangered ecological community or plant species, if the site is so degraded, for example by weed invasion, that no seed is able to germinate, the population is not viable. With no seedlings, all the adult plants will eventually die.
It must be assumed that any population is viable if it is found on a site. The difficulty is to demonstrate that removing habitat or a portion of the population will not reduce the viability of that population. Genetic viability is as important as demographic viability so both would require some analysis.
b) in the case of an endangered population, whether the action proposed is likely to have an adverse effect on the life cycle of the species that constitutes the endangered population such that a viable local population of the species is likely to be placed at risk of extinction,
Yes or No? This generally requires an extensive explanation of how the species could use the site if it does not occur, and how it does use the site if a population occurs there. The viable population is that which lives in the area defined for the population, not just the development site. In the case of an endangered population of a plant species, if the site is so degraded, for example by weed invasion, that no seed is able to germinate, the population is not viable. With no seedlings, all the adult plants will eventually die.
c) in the case of a critically endangered or endangered ecological community, whether the action proposed:
(i) is likely to have an adverse effect on the extent of the ecological community such that its local occurrence is likely to be placed at risk of extinction, or
(ii) is likely to substantially and adversely modify the composition of the ecological community such that its local occurrence is likely to be placed at risk of extinction,
If the community is to be removed from within the boundaries of the site, it will be regarded as going extinct unless it can be demonstrated that adjacent land has a viable population that is secure. There are threshold numbers of individuals that make a population of any species genetically secure in the long term. Removal of one or more vegetation layers will be regarded as "clearing". On this basis "underscrubbing" is regarded as clearing, and will cause the extinction of the community. Modify also refers to removal of certain species.
d) in in relation to the habitat of a threatened species, population or ecological community:
(i) the extent to which habitat is likely to be removed or modified as a result of the action proposed, and
(ii) whether an area of habitat is likely to become fragmented or isolated from other areas of habitat as a result of the proposed action, and
(iii) the importance of the habitat to be removed, modified, fragmented or isolated to the long-term survival of the species, population or ecological community in the locality,
In answering (d) (i), (ii), and (iii) above, the following considerations could usefully be employed:
(1) The extent of habitat
Numbers are required here, in the form of measured areas and calculations. The following calculations are a basis for making a judgement of significance.
(a) an assessment of the amount of habitat which occurs within the local area
(b) an assessment of the amount of habitat which occurs within the study area
(c) a calculation of the amount of habitat that the study area represents in relation to the local distribution
(d) a calculation of the amount of habitat of the study area which is proposed to be removed or modified
(e) a calculation of the amount of habitat of the local area which is proposed to be removed or modified
(2) Connectivity values
A detailed knowledge of how the species move around, or for which gene flow occurs, is required here, to understand the use of this site habitat.
(3) Fragmentation and isolation
How will this proposal affect habitat in a wider context? A map will show this clearly. This asks about the strategic significance of the site for a species. Home range analysis and population viability will assist in answering this question.
(4) Size of the site
A map is required here, with a scale, and distances marked on it.
(5) Modification or removal
A modification may be digging a drain to change soil water content, changing the path of overland stormwater flow, "underscrubbing" to remove a shrub layer, or selective logging.
e) whether the action proposed is likely to have an adverse effect on critical habitat (either directly or indirectly),
Yes or no? Some particular sites have been declared under the TSC Act 1995 for particular species.
f) whether the action proposed is consistent with the objectives or actions of a recovery plan or threat abatement plan,
Recovery Plans may or may not have been published for the items being considered. New plans will not become available due to change in government policy. The replacement Priority Action Statements may be helpful but may not be comprehensive.
g) whether the action proposed constitutes or is part of a key threatening process or is likely to result in the operation of, or increase the impact of, a key threatening process.
Yes or no? Most proposed development will require the "Clearing of native vegetation" which is a Key Threatening Process relevant to a community, population, or species. It is listed under the Threatened Species Conservation Act, 1995 and the Commonwealth's Environment Protection and Biodiversity Act, 1999 (EPBC Act). An assessment is to be made then as to whether the extent of clearing is significant. The triggers for significance in this item are not the same as for the EPBC Act 1999.
A clear statement is required. A significant/No significant effect is anticipated from the proposal/proposed development. Therefore a Species Impact Statement is/is not recommended.
If a significant effect is found, it is wise to consider a change to the proposal to enable a different outcome. Council or other determining or consent authority can take a different view, on the basis of their own Seven-part Test. If the consent authority differs there should be a published Seven-part Test to support that finding.
Seven-part Tests for Endangered Ecological Communities
These notes are brief comments on some aspects to be considered in a Seven-part Test for an Endangered Ecological Community (EEC).
The test applies to:
The test needs to take into account:
Areas for further investigation
In order to research the impact of a proposal, some ideas that can be considered are as follows:
History of pre-lodgement negotiations
It is sometimes (not always) wise to have a pre-lodgement meeting with council environmental scientist or planners or both to discuss aspects of the site and development options. As a result it is important to:
Planning and design proceed on that basis, so it is important that council staff recognise the significance of such meetings. Failure to stick to agreements made in negotiation will destroy the credibility of individual council staff as well as the council process.
Final Determinations for a number of EECs make it clear that a single tree may be the remaining representative of a community on a site. Refer to the following Final Determination extracts. In this context, if there is enough there for it to be recognised, it doesn't matter if only a single tree or half the species are present in a vegetation community.
Cooks River/Castlereagh Ironbark Forest -
"Disturbed Cooks River/Castlereagh Ironbark Forest remnants are considered to form part of the community including remnants where the vegetation would respond to assisted natural regeneration such as where the natural soil and associated seed bank is still at least partially intact."
"The structure of the community is generally woodland or may occur as remnant trees."
"The structure of the community was originally open-forest but may now exist as woodland or as remnant trees."
"The understorey is generally grassy to herbaceous with patches of shrubs, or if disturbed, contains components of indigenous native species sufficient to re-establish the characteristic native understorey. The Cumberland Plain Woodland includes regrowth which is likely to achieve a near natural structure or is a seral stage towards that structure."
"The number of species and the above-ground composition of species will change with time since fire, and may also change in response to changes in fire frequency. The structure of the community was originally forest, but may now exist as woodland or as remnant trees. … only remnant trees may remain. These may have particular ecological and genetic significance and may be important sources of propagation material for use in rehabilitation projects. It is estimated that only 0.5% of the original area of STIF exists in the form of a number of remnants."
Many of the stands of EECs are found on private land and are in a highly degraded state. In that case, we need to assess a site as a class relevant to OEH or council mapping, and take that as the level of community against which to compare in area.
A useful question to ask is "Where in the spectrum of intervention strategies (OEH 2005) do you think this land falls?" If it is not likely to be able to respond to weeding (assisted regeneration), then a costs issue comes to mind. The cost of recovery for a site may be high in monetary terms and may be beyond the means of individual landowners. In a Seven-part Test this is strictly not a matter to be considered. Such matters are properly addressed in a Species Impact Statement.
Can it recover?
Methods of restoration described (OEH 2005), include the following as relevant to urban garden land and similar degraded sites:
Revegetate - Where a site has failed to respond to natural and/or assisted regeneration techniques and there is no regeneration potential, reconstruction through revegetation is then an option.
McDonald et. al. (2002) reported on Blue Gum High Forest regeneration projects at Sheldon Forest, Kitchener and Denistone. A range of techniques were employed on sites in a condition better than many urban garden stands of EECs. That was a five year study, with a significant input of time and money.
After treatment, the following results were achieved:
Table 6. Changes in number of (a) sclerophyll and (b) total species found at three Blue Gum High Forest sites before and after treatment
Sheldon Forest vegetation consisted of a total of 69 species, including:
42 native groundcover species including grasses, forbs and ferns, and
18 native sclerophyll shrubs and subshrubs.
The effort produced a regenerated community.
39-47 Robert Road and 20 Ashford Road Cherrybrook
McDonald Degradation Classification system (McDonald 1996)
An interpretation of the relative (assisted) in situ resilience of different ecosystem types to a range of anthropogenic disturbances at a range of intensities.
(R = resprouting species; S = seeding species; "Some" refers
to a shift in species;
EECs in the NSW Land and Environment Court (LEC)
A number of matters raised in cases in the NSW Land and Environment Court that assist in preparing a 7-Part Test, are as follows:
Plumb v Penrith City Council
In the NSW LEC Plumb v Penrith City Council, (4)0393 of 2002, Pearlman J heard evidence that an area to be modified or removed of up to 7 hectares represents only 0.026% of the area of Cumberland Plain Woodland (CPW) that remains on the Cumberland Plain, is therefore insignificant.
The site description was "scattered trees with grassy understorey" (that makes it woodland), and "the understorey is dominated by Grevillea juniperina" (which is a threatened species).
The judgement comments included the following:
"45 However, the evidence is equivocal in relation to the conservation value of the area of the school site and consequently in relation to whether a significant area of known habitat is to be modified or removed. As [Dr Expert 1], [Dr Expert 2] and [Mr Expert 3] each pointed out, the school site is highly modified and degraded. [Ms Expert 4] recognised this, but she considered that the school site had good regeneration potential. Her opinion was that CPW at the school site is at a seral stage, and that sufficient diversity of native CPW species exists to allow recovery of the community to a near natural state if mowing, slashing and grazing are controlled. And in cross-examination, Dr Ambrose conceded that the school site had regeneration potential which could increase species richness and diversity. ...
"47 I accept the evidence that CPW on the school site has a potential to regenerate but I consider that this potential, taken on its own, is insufficient to conclude that a significant area of known habitat is to be removed or modified when compared to the regional distribution of CPW. ...
"49 [Mr Expert 5]'s evidence is also relevant to the issue of conservation value. His opinion was that the modification or removal of any area whatsoever of CPW would be significant. He said that all remaining patches of CPW assume significance where the vegetation type is greatly reduced and highly fragmented, whether the significance is related to existing value for flora or the potential to obtain such value via natural or assisted regeneration processes. [Mr Lawyer 1] and [Mr Lawyer 2] each submitted, in effect, that [Mr Expert 5]'s opinion was unrealistic. I think that submission is correct. If accepted, it would render the Eight Part Test otiose because the question posed by s78A(8)(b) would always be answered in the affirmative. Any development that modified or removed any area of threatened species habitat would have to be regarded as likely to have a significant affect, no matter what degree of modification or removal was involved. This does not accord with the question posed by s 78A(8)(b) nor with the Eight Part Test.
"50 Having regard to all these matters, I find that, in relation to the regional distribution of the habitat of CPW, no significant area of known habitat is to be modified or removed."
With regard to clearing, Pearlman J made the observation that where there is no intact forest structure, little recognisable native herb layer, no native shrub layer, nor small native tree layer:
"62 That leads to another issue. Under s15 of the TSC Act, a threatening process may be listed as a "key threatening process", if, in the opinion of the Scientific Committee, it adversely affects two or more threatened species. On 21 September 2001, the following was listed as a key threatening process, namely, "clearing of native vegetation (as defined and described in the final determination of the Scientific Committee to list the key threatening process)"... The threatening process final determination defines "clearing" as follows:
"Clearing" is defined as the destruction of a sufficient proportion of one or more strata (layers) within a stand or stands of native vegetation so as to result in the loss, or long term modification, of the structure, composition and ecological function of stand or stands ...
The decision included the following:
Hornsby Shire Council v Vitone Developments Pty Limited LEC 40500 of 2003
In the NSW LEC evidence was given that sixty-seven percent (67%) of species recorded on that Cherrybrook site are exotic species, twenty-eight (28) of the fifty-six (56) species mentioned in the Final Determination were found, and 74 native species had been recorded on the site.
McClellan CJ wrote in a judgement:
"93 I do not think that the determination should be applied so that a community can be identified irrespective of the extent of active regeneration which may be necessary to bring it to life. For a community to exist, enough species must be present on site to allow them to function as an interdependent group. However, the extent to which active regeneration could be accommodated will have to be considered in the circumstances of each individual case.
"97 In this case only about half of the number of individual species from the characteristic assemblage of species comprising the community have been identified on the site. The site is also known to have been used for many years in a manner hostile to the maintenance of the community. I accept ... that the site lacks the necessary representative structure, with the understorey largely missing, which would be required before it could be concluded that an ecological community exists.
A fire regime for EECs
A suitable fire regime is regarded as essential to the maintenance of species diversity in an EEC. In the absence of a suitable fire regime, some species go extinct, and species such as Pittosporum undulatum need to be controlled manually (McDonald et. al. 2002). In an urban setting, a fire regime is not realistic, so a fully functional EEC will not be achieved on some sites.
Because of the threat of cumulative impacts, a Council needs to consider a way to enable sites to be developed in a manner that ensures long term security for any native vegetation on the site. A Vegetation Management Plan, administered by a body corporate, may be a viable approach.
Department of Environment and Conservation (NSW). (2005). Recovering Bushland on the Cumberland Plain: Best practice guidelines for the management and restoration of bushland. Department of Environment and Conservation (NSW), Sydney.
McDonald M. C., (1996) Ecosystem resilience and the restoration of damaged plant communities: a discussion focusing on Australian case studies. PhD thesis, University of Western Sydney, Hawkesbury.
McDonald, T., K. Wale and V. Bear (2002) Restoring Blue Gum High Forest: lessons from Sheldon Forest Ecological Management and Restoration 3(1):15-26
If your proposal is likely to have a "significant effect" (based on a 7-Part Test) on a threatened species, endangered population or endangered ecological community, you may be required to prepare a Species Impact Statement for your DA. The threshold is whether or not the species might go extinct on your site. We have experience in managing a site or designing a proposal so that such is not likely to occur.
An SIS takes up to 10 weeks to begin. The Director-General of OEH will write a letter outlining the required content of the SIS, and the work may take some months to perform. The SIS is a detailed analysis of the impact of your proposal in a wider area than just your land.
There may be good grounds for pre-empting the need for an SIS in order to speed up the development process. As well, it may be a consideration to lodge notice of an appeal to the Land and Environment Court when a DA is lodged at Council, if there is reason to believe that Council may not be able to satisfactorily deal with the application.
A Master Plan takes into account a whole range of matters and provides a total concept plan for a site. Flora and Fauna matters are just a small part of a Master Plan. Abel Ecology services the Master Planning process by identifying opportunities and constraints at the beginning of the process. These may be natural, ecological and bushfire considerations. Our commercial and industrial clients use this service before any architectural or other investigations are made.
An EIS is a wide ranging analysis of various factors for your DA. Flora and Fauna matters are just a small part of an EIS.
There is a standard format for a Review of Environmental Factors (REF).
This format is provided by the Department of Water and Energy (DWE) (previously Department of Infrastructure, Planning and Natural Resources (DIPNR)), and can be amended to suit any proposal.
We have prepared REFs for a range of projects, and this includes OEH bushfire hazard reduction burns. The wise procedure is to be aware of the considerations required by the REF, then find out how the land under consideration suits your intentions.
A well designed project, which takes into account the opportunities and constraints of the site first, makes the process of preparing a REF simpler, faster and more cost effective.
A SULE (Safe Useful Life Expectancy) report deals with the health of trees and their relation to your development. Trees are rated according to vigour, form, damage, disease and location among other things. A map is prepared showing trees to be retained and trees to remove. Our Tree Consultant can advise on management of individual trees in the context of works on your site.
State Environment Planning Policy Number 44 (SEPP 44) "Protection of Koala Habitat" provides a basis for assessing land as Koala habitat. It is now an old document and the subject of much abuse. It provides an inadequate method for determining whether or not Koalas will use a site. Areas with active Koala colonies can be described as not being Koala habitat under SEPP44, as was done on the Far North Coast of NSW.
A site within the range of the species and with appropriate food trees is regarded as "Potential" habitat, and an area actively used by Koalas is "Core" habitat.
SEPP 44 has a list of species of trees which is not actually relevant to any one part of NSW. A more recent publication of the Draft Recovery Plan (OEH) for Koalas includes lists of trees for any particular part of NSW.
The Australian Koala Foundation (AKF) has published a method (SPOT assessments) for determining Koala use of an area, and Abel Ecology uses that protocol. Abel Ecology also uses the experience gained from a nine month radio tracking study of a released rehabilitated male Koala at Glenbrook (Wotherspoon et al 1999), and training by AKF at national conferences.
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