PRACTICE AND PROCEDURE — interlocutory injunction — application to restrain slashing works pursuant to s 13.14 of the Biodiversity Conservation Act 2016 (NSW) — potential breach of s 2.4(1) of the Biodiversity Conservation Act — similar matter running concurrently in Federal Court — no prima facie case — balance of convenience against the applicant — application dismissed
Quick Take
1For the purposes of the definition of 'habitat' in s 1.6 of the Biodiversity Conservation Act 2016 (NSW), 'occupation' of an area by a species is to be understood as something distinct from merely traversing it; periodic or occasional occupation addresses circumstances where a species occupies an area for a particular part of its lifecycle, and areas merely traversed by a species during favourable weather may not constitute 'habitat'.
2Where slashing has been conducted on land for decades and expert evidence establishes that it does not deter or damage the functional use of the area by a threatened species for dispersal or foraging, a prima facie case that slashing constitutes 'damage' to habitat within s 1.6 of the BC Act may not be made out.
3The defence in s 2.8(1)(a)(i) of the BC Act (act necessary for carrying out development in accordance with a development consent) may be available where a valid development consent exists, and a condition of that consent referring to 'clearing or removal' of native trees and vegetation will not necessarily be read as prohibiting slashing, particularly where slashing has historically occurred on the land and the condition is directed at ringbarking and cutting down of trees.
