The Court held that an 'assumed presence' approach to surveying a critically endangered species (Genoplesium insigne) does not provide sufficient information to undertake the serious and irreversible impact (SAII) assessment required by ss 6.5 and 7.16 of the Biodiversity Act 2016 (NSW), because without knowing the actual number of individual plants, the principles in cl 6.7(2)(a) and (b) of the BC Regulation — concerning further decline and further reduction of a very small population — cannot be meaningfully engaged with. The Court distinguished between the area-based species credit calculation under the BAM (which was correctly applied) and the separate, individual-count-dependent SAII assessment, holding that the latter requires surveys during the species' optimal flowering period to establish a baseline. The Court also found that deferring surveys and review of an experimental Soil Translocation Plan to conditions of consent would impermissibly defer the state of satisfaction required as a precondition to the grant of consent under s 7.16(2).
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