When a Single Tree Can Constitute and Endangered Ecological Community

Important questions have been raised with a number of Sydney councils concerning Blue Gum High Forest (BGHF), Sydney Turpentine Ironbark Forest (STIF) and other plant communities listed as Endangered Ecological Communities (EECs). Very conservative interpretations of the Final Determinations of the NSW Scientific Committee by some individuals has created ethical issues for ecological consultants, and presents a myriad of practical problems.

Image: Sydney Blue Gum Eucalyptus saligna by Margaret Morgan

To further complicate matters, a recent Land & Environment Court decision to recognize a heritage-listed house and garden on Sydney’s North Shore as a BGHF community and to support DECC in requiring its return to ‘bushland’ on the basis that some native canopy trees had been retained in the 19thC arboretum, raises alarm bells for anyone who has retained native trees on their property, or those who have followed the trend to planting local native species. For the BGHF and other EECs, the fundamental problem appears to be a very narrow, and in my opinion ill-considered, interpretation of some elements of the Final Determinations.

For the ‘critically endangered’ BGHF in the Sydney Basin Bioregion, problems centre largely on Item 9, which reads (in part) “Highly modified relics of the community also persist as small clumps of trees without a native understorey”; and Item 11, which reads (in part) “A number of stands of Blue Gum Forests have highly modified understories, in which the native woody component has been largely replaced by woody exotic species or by increased abundance of native and exotic grasses”.

These extracts from the Final Determination have been interpreted by some Council officers, supported by consultants employed to support their stance, to mean that a single tree growing in a garden setting, in a lawn, or even a tree retained in a paved parking lot for shade, represents the critically endangered BGHF community – with all the inherent issues and problems that this entails. In fact, in some cases, it has been considered that the presence of any tree species listed under a FD indicates the presence of that EEC – notwithstanding that many of these species occur in a number of different vegetation communities and are not in any sense ‘diagnostic’ solely of the subject EEC. Some consultants go further, and where commonly occurring species as Oplismenus, Dichondra, Pratia, or Acacia are observed growing in introduced lawns, garden beds or on disused land, declare the site to be ‘actively regenerating’ to the said EEC – describing such species as ‘characteristic’; in one singular case, of regenerating BGHF. Such sites are said to represent ‘potential bushland’.

Similarly, some of the older Determinations such as Shale Sandstone Transition Forest (SSTF, 10/98) or Sydney Turpentine/Ironbark Forest (STIF, 11/98) present problems as they describe the EECs as persisting mainly as “fragmented stands” or individual trees”, or even as “seed in the soil seed bank”, with “many species being absent from the above-ground biomass”. This has given rise to situations whereby a cleared horse paddock in Kellyville was subject to a Species Impact Statement; and where a landowner in central Castle Hill whose small suburban Lot retained 5 native trees has been instructed to carry out a full flora and fauna survey and 7-part test in order to submit a DA to demolish the 70 year old house and build a new one on the same footprint.

Such interpretations and leaps of fancy obviously impact most heavily on properties which are fully developed, and may have been so for many years. Plans to rebuild an old house, add an extra room or a swimming pool, or even realign the driveway now requires detailed ecological assessment, often including an SIS, and if the area formerly supported an EEC, the chances of getting permission are pretty slim. More and more cases are being referred to the L&E Court, while DECC continue to persist in the belief that such properties can and should be ‘returned to bushland’, regardless of land tenure and existing land use. Of course, ‘Greenfield sites’ are another matter; and development applications for such sites rightly should have to undergo thorough ecological assessment. In initiating this discussion the author is not referring to projects proposed by big developers who are seeking a maximum return on their investments, but to the small property owner with limited resources; but currently the law makes no obvious distinction between such individuals and a real ‘developer’.

Any involvement in controversial projects puts the ecological consultant at a distinct disadvantage. Go along with the ultra-conservative viewpoint and one risks being considered irrational and a ‘radical greenie’ – and your potential client base narrows. Take issue, and you risk being seen as a troublemaker or labelled ‘pro-development’; in extreme cases even ‘blacklisted’. Appeals to common sense usually fall on deaf ears; and attempts to approach the problem in a measured scientific manner, or to provide a practical workable approach to management serves only to risk the wrath of the conservation lobby and (not infrequently), of agency middle level management - which has to be said - has largely been captured by the extreme end of the bush regeneration movement.

While not in any way opposing the fundamental conservation ethic or the urgent need to protect remnant native bushland, I would suggest that this narrow interpretation of the legislation and the often impractical and (at times) impossible demands imposed by local control authorities are counter-productive, and serve only to alienate the wider community. As an ecological consultant with over 20 years of on-ground bushland management experience, I would urge other consultants; council and agency personnel alike to consider the implications of their decisions and recommendations, and to routinely ask themselves “are my conditions reasonable, and ultimately achievable?” “Could I comply with these conditions if I had a reasonable level of resources and there are no external constraints?” If the answer to any of these is ‘no’, then reconsider.

The author and other colleagues have approached the Scientific Committee requesting clarification of some of their more problematic statements, but these have not been forthcoming. However, although some of the individuals involved have said privately that although the original intent of the Committee was not necessarily in keeping with current interpretations (as described here), there are apparently no plans to issue guidelines – which rather leaves the legislation open to interpretation – and misuse.

So…. for landowners, whether big or small: what next? If and when this new approach gains currency, will we see trees on residential blocks being routinely cut down to avoid future problems (yes, you can do it, despite tree preservation laws if you are really determined), and will people stop planting local native trees just in case they are ‘creating’ a future EEC? It seems a likely scenario; and one which is diametrically opposed to the fundamental aims of the environmental legislation. A dilemma indeed!

Judith Rawling BA,DipEd,DipEnvStud,MEnvStud
Managing Director
UBM Ecological Consultants, UBM Projects

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