Scope for Consideration and Comment for Royal National Park Road Easement Proposal

Mark Da SilvaPosted on Posted in Articles
Scope for Consideration and Comment for Royal National Park Road Easement Proposal
No road through the Royal for Bundeena Coast Eco-Resort.

No road through the Royal for Bundeena Coast Eco-Resort.

Many community members have contacted us concerned about the information provided on the NSW Office of Environment and Heritage (OEH) web page notifying of the public consultation over the proposed road easement through the Royal National Park. The following statements have raised particular concern:

“Please note, we are only considering the possible impact and benefits of the requested trail access, not the planned eco-tourism development.

“The Review of Environmental Factors (REF) is a proposal for formal access to 60-70 Bournemouth Street (Bundeena) to construct and service an eco-tourism facility. Any submissions received that are outside the scope of the REF will not be considered in the assessment process.” (our emphasis)

We have consulted EDO NSW (Environmental Defenders Office NSW) regarding the scope of assessment that is required to be undertaken by law. Our summary of that advice is below. Extracts from a letter of legal opinion prepared by EDO NSW follow.

Background

The NSW Office of Environment and Heritage (OEH) have advised that road access through the Royal National Park to the proposed Bundeena Coast Eco-Lodge recreation camp at Spring Gully, Bundeena requires assessment under:

The development proponent has lodged an application for a road easement with the National Parks and Wildlife Service (NPWS), a division of OEH. The application is required to take the form of a Review of Environmental Factors (REF) so that NPWS can make an assessment under Part 5 of the EP&A Act.

The applicant’s REF was exhibited from 1 to 15 June 2017. Due to inconsistencies with the exhibited material, the REF is being publicly re-exhibited until 4 August 2017.

Summary

In making an assessment of the environmental impacts of the proposed activity, the REF must examine, to the fullest extent possible all likely environmental impacts including:

  • short term and long term,
  • direct and indirect and
  • all cumulative environmental effect with other existing or likely future activities.

In assessing any likely impacts to threatened species, endangered ecological communities or critical habitats, the REF must take into consideration impacts arising on both the subject site (the area of direct impact from the activity) and the study area (those additional areas that are likely to be directly or indirectly impacted by the proposed activity.

The NPWS public exhibition web page states that the proposed road easement is to facilitate the construction and operation of the proposed Eco-Lodge. Given that the REF states that no alternative access route is proposed, it is clear that the proposed Eco-Lodge will not proceed unless the road access is granted. The circumstances of the proposal are that approval of the road easement will cause the entire set of environmental impacts associated with the proposed road and eco-tourist facility to come to fruition. As such, the environmental impacts associated with the proposed eco-tourist facility must be considered in assessing the road application as these impacts will only arise as a result of approval of the proposed road easement.

Furthermore, we are advised by EDO NSW  that the Land and Environment Court has found that the assessment required under Part 5 of the EP&A Act is more exacting and requires a higher standard of consideration than the assessment undertaken under s79C of the EP&A Act for the appeals against development refusal for the proposed eco-lodge (which await a final determination by the Court). As such, the NPWS and the Minister for the Environment cannot in law rely upon the proceedings  currently before the Court. Instead, the minister must make a fresh assessment of the proposal against Part 5 of the EP&A Act.

Assessment Framework

EP&A Act

The NPWS must assess the proposal as an activity under Part 5 of the Environmental Planning and Assessment Act.

Of relevance under Part 5, is s.111 “Duty to consider environmental impact”, particularly s.111(1) which states that the determining authority (NPWS) must:

“examine and take into account to the fullest extent possible all matters affecting or likely to affect the environment by reason of that activity” (our emphasis).

Review of Environmental Factors (REF)

In order to satisfy Part 5 of the EP&A Act, the NPWS required the applicant to prepare the REF currently on exhibition. The REF must be prepared in accordance with the “Guidelines for preparing a Review of Environmental Factors, OEH”

A summary of relevant considerations required by the guidelines includes:

Matters to be taken into account when considering the likely impact of an activity on the environment include:

  • environmental impact on a community
  • transformation of a locality
  • environmental impact on the ecosystems of the locality
  • reduction of the aesthetic, recreational, scientific or other environmental quality or value of a locality
  • effect on a locality, place or building having aesthetic, anthropological, archaeological, architectural, cultural, historical, scientific or social significance or other special value for present or future generations
  • impact on the habitat of protected fauna (within the meaning of the NPW Act)
  • endangering of any species of animal, plant or other form of life, whether living on land, in water or in the air
  • impacts on threatened species, populations, or communities
  • long-term effects on the environment
  • degradation of the quality of the environment
  • risk to the safety of the environment
  • reduction in the range of beneficial uses of the environment
  • pollution of the environment
  • environmental problems associated with the disposal of waste
  • impact on coastal processes and coastal hazards, including those under projected climate change conditions
  • increased demands on resources (natural or otherwise) that are, or are likely to become in short supply
  • cumulative environmental effect with other existing or likely future activities.

(s3.1, pp25-6) See also cl.228 EP&A Regulation 2000.

An SIS (Species Impact Statement) is likely to be required if an activity is likely to have a significant effect on (s2.8, p24):

  • an endangered ecological community or its habitat
  • threatened flora species, populations or their habitats
  • threatened fauna species, populations or their habitats
  • any impact on critical habitat.

The proposed activity must be justified against a consideration of all reasonable alternatives, including the do-nothing alternative. (p28).

The REF must include a comprehensive description of the existing environment and surrounds that would be affected by the proposed activity. This includes the site on which the activity is proposed to occur and its surrounding environment. (p29).

All REFs must include a statement as to whether or not threatened species, populations and ecological communities are likely to occur in the proposed subject site and study area.

Subject site means the area directly affected by the proposal.

Study area means the subject site and any additional areas which are likely to be affected by the proposal, either directly or indirectly. The study area should extend as far as is necessary to take all potential impacts into account.

If it is found that threatened species, populations and/or ecological communities occur or are likely to occur in the subject site and/or study area then an Assessment of Significance must be included with the REF. (p30).

The REF must include a detailed analysis of the impacts of the proposal on the environment including the cumulative impact of the proposal (p33).

s3.8 Physical and Chemical Impacts and s3.9 Biological Impacts provide further detail on assessment of other relevant factors such as soil quality and stability, impacts to streams and waterways and impacts to biology.

s3.10 Community Impacts requires assessment of impacts to public safety, amenity and bushfire risk.

The REF Guidelines also require that activities on reserved land must be consistent with the objects and purpose of the NPW Act and any adopted plan of management for the area.

Additional Matters

Any assessment of impact on a threatened species, endangered ecological community or critical habitat must comply with s5A of the EP&A Act.

S111(2)(b) of the EP&A Act requires that the proposed activity must be consistent with the relevant Park Plan of Management.

Relevant guidelines and policies:

Legal Opinion of EDO NSW

Below are extracts from the letter of legal opinion sent by EDO NSW (Environmental Defenders Office) to the Acting Chief Executive Officer, OEH, dated 21/06/2017, concerning the public exhibition of Bundeena road access via Royal National Park Review of Environmental Factors (easement application) in June 2017. Please note the NPWS Letter received in response.

“…the Easement Application (and associated works) constitutes an activity under Part 5 of the EP&A Act. Section 111(1) of the EP&A Act sets out the environmental impact assessment that is required to be undertaken in respect of Part 5 activities, and relevantly provides:

“For the purpose of attaining the objects of this Act relating to the protection and enhancement of the environment, a determining authority in its consideration of an activity shall … examine and take into account to the fullest extent possible all matters affecting or likely to affect the environment by reason of that activity” (emphasis added).

“…to the extent that the Land and Environment Court (LEC) has considered the environmental impacts of the Eco-Lodge, including any impacts of works associated with the Easement Application, under s. 79C of the EP&A Act, those considerations and any conclusions drawn from them cannot be relied upon in determining the Easement Application. This is because the duty to consider the environmental impacts of the Easement Application under s. 111 of the EP&A Act (and s. 153C of the NPW Act) is distinct from, and more onerous than, the task undertaken by the LEC when considering the impacts of the Eco-Lodge under s. 79C of the EP&A Act. Instead, the Minister, or her delegate, must make a fresh consideration of the environmental impacts of the Easement Application in accordance with the specific requirement of s. 111 of the EP&A Act and s. 153C of the NPW Act.

“Clause 228 of the Environmental Planning and Assessment Regulation 2000 (EP&A Regulation) sets out the factors that are required to be taken into account when considering the likely impact of the Easement Application on the environment under s. 111 of the EP&A Act. Specifically, cl. 228(2)(o) requires consideration of any cumulative environmental effects with other existing or likely future activities.

“Accordingly, the environmental impact assessment undertaken in respect of the Easement Application must include consideration of any cumulative, or non-direct, impacts associated with any development related to the Easement Application. In our client’s view, this consideration of cumulative impacts must include the consideration of the environmental impacts of the construction and use of the Eco-Lodge itself. This is because, as noted above, the sole purpose of the Easement Application is to facilitate legal access to the Eco-Lodge. If legal access to the Eco-Lodge cannot be demonstrated, that is, if the Easement Application is not approved, then development consent for the Eco-Lodge is not likely to be granted and it will not be constructed. As such, the effect of any grant of the Easement Application would be to permit all of the environmental impacts associated with the Eco-Lodge to come to fruition, and therefore, under s. 111 of the EP&A Act, these impacts must also be considered by the Minister, or her delegate,

“However, the REF provides no assessment of any cumulative impacts of the Easement Application. Section 9 of the REF, entitled Impact Assessment, refers only to the direct impacts of the works associated with the creation of the easement sought in the Easement Application. Accordingly, the REF is inadequate to allow the Minister, or her delegate, to discharge the duty to consider the environmental impacts of the Easement Application under s. 111 of the EP&A Act.

“…it is not permissible to rely on the environmental assessment undertaken by the LEC in respect of the Eco-Lodge in this regard, as that assessment was undertaken in accordance with the different and lesser requirements of s. 79C of the EP&A Act.

“Moreover, the OEH’s Threatened Species Assessment Guidelines (Guidelines) state that when assessing the significance of the impacts of the Easement Application in relation to threatened species or Endangered Ecological Communities (EEC), the assessment should extend to occurrences of those species or EECs on adjoining or contiguous areas. The Guidelines are required to be considered when conducting the environmental impact assessment required under s. 111 of the EP&A Act.

“Further, s.153C(2)(a) of the NPW Act also specifically requires the Minister, or her delegate, to consider whether the access sought by the Easement Application will have a significant impact on the environment of the area adjacent to the proposed easement, prior to granting approval to the Easement Application.

“Accordingly, the REF’s failure to consider the cumulative impacts of the Easement Application, including the direct and indirect impacts it will have on the environment of adjoining or contiguous areas (including on threatened species and EECs), such as the Site of the Eco-Lodge, is not acceptable, and not sufficient to allow the Minister, or her delegate, to discharge the requirements of s. 111 of the EP&A Act.

“…it is not permissible to rely on the environmental assessment undertaken by the LEC in respect of the development applications for the Eco-Lodge when considering the impacts of the Easement Application.

“In our client’s view, the REF is inadequate to the extent it purports to rely on the LEC’s assessment of the impacts of the Easement Application, and these statements should not be relied upon by the Minister, or her delegate, in assessing the Easement Application.

“Instead, the REF should have included a fresh assessment of the specific impacts (direct and indirect) of the Easement Application. In this regard, we note that the REF contains no new ecological surveys specifically tailored to the impacts of the Easement Application. Moreover, our client has obtained independent expert opinion, which suggests that, in any event, the ecological surveys referred to in the REF are insufficient to discharge the duty to consider the environmental impacts of the Easement Application under s. 111 of the EP&A Act, and to determine whether or not it is likely to significantly affect the environment, within the meaning of s. 112 of the EP&A Act.”