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April 18, 2021

Bypass Biodiversity Destruction Part 2 – ACT NOW

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Former Mayor Jan Barham WARNS Survey Needed

‘The project was approved following a rigorous environmental assessment process’  TRUE OR FALSE?
Byron Bay Bypass – Byron Shire Council Community Update, July 2019 

If this statement represents Council’s confidence in the bypass proposal then why have they refused to permit an independent flora survey in the disputed rainforest area in the bypass construction footprint on public land?

Floodplain rainforest vegetation that will be destroyed.

There’s increasing community concern that ecological values may have been overlooked in the bypass environmental assessment process. The vegetation survey would provide an additional check and precautionary approach.

Note: The survey is at no cost to BSC or state government. The request was for permission to have an independent, accredited biobanking / biodiversity offset assessor undertake the survey on public land in the ‘public interest’.

In 2014 Byron Shire Council chose a planning process that isn’t regarded as a rigorous ecological standard. Under biobanking assessment, it’s a red-flag area, as a defined SEPP 14 wetland, with threatened ecological community, swamp sclerophyll forest, and Mitchell’s rainforest snail habitat, a critically endangered species.

The biobanking process reduces the ecological integrity of impact assessment, compared to the alternative Species Impact Statement and EP&A Act Part 5 process. Biobanking is defined by a set of rules, known as the methodology, that require consideration of many environmental aspects. Review of the process for the bypass indicates that one component of the methodology (area of vegetation) has been used to justify the omission of other information that is required for assessment. The process also failed to consider the impacts of the wetland excavation on the flora and fauna.

Environmental assessment review

The endangered Mitchell’s rainforest snail.

An independent review of the bypass has been undertaken, just as it would be for any development. There is no doubt that there will be destruction of significant vegetation and impact on threatened species.

These are the key issues, but are we fully aware? The reviews have been undertaken by a highly respected local ecologist, David Milledge, who has over 40 years of local experience and has previously worked for Council assessing the ecological rigour of applications. His reviews question the rigour of this application and should be investigated further; the survey is crucial.


As shown in the diagram, the bypass assessment surveys did not investigate the area defined on BSC’s own mapping as rainforest. In the biobanking rules, an area smaller than 0.25ha of a vegetation community isn’t required to be considered in the ecological assessment to seek approval for destruction.

The destruction of even a small portion of SEPP 14 wetland is significant, but the potential for destruction of a threatened ecological community (TEC), dismissed by a substandard set of rules, is of concern. The potential for this subtropical rainforest to be a critically endangered TEC is unknown because it wasn’t thoroughly investigated.

The consultant GHD did no substantial surveys for the biobanking assessment: two days of surveys in October 2014 and no nocturnal surveys, despite a number of threatened species, including bats and birds. They also relied on survey work done up to 20 years ago. Not there, if you don’t look!

Excavating and filling the wetland

Floodplain rainforest vegetation in the path of the Byron Bypass.

There was no comprehensive ecological assessment undertaken for the impact of excavation works, the release of acid sulfate soils, the impact of chemical treatment of the excavated material and the filling of the wetland with 30,000 cubic metres of material. The fill amount was wrongly defined in the EIS as being 4,100 cubic metres but BSC has obtained a permit for the 30,000m³. Council admits that there will be up to 21,000 cubic metres of imported fill, without defining where the fill will come from and if it may also impact on flora and fauna. The excavated fill to be treated is now at 4,500m³ and we don’t know where or how it will be ‘treated’.

The bypass is impacting on a delicate, unique system, a wetland, that has been defined as requiring protection since 1985. It’s vital that every measure is taken to ensure that the precautionary principle is applied prior to destruction.
Commonwealth Environmental Protection and Biodiversity Conservation Act (EPBC)

Council’s self-assessment in relation to the need to apply for a Commonwealth permit has been queried. The Commonwealth Department of Environment is reviewing BSC’s lack of an EPBC Act approval to undertake works that may impact on the nationally critically endangered (CE) Mitchell’s rainforest snail by the clearing of habitat. The NSW OEH has clearly stated that EPBC requirements are the responsibility of the applicant (BSC).

Byron Shire Council’s vegetation mapping (2017) showing subtropical rainforest (green area), overlayed with the bypass route (yellow area) and GHD biobanking survey plots (blue rectangles).

The implications of lowering the standards

If this were an external developer application, I’m confident that if inadequacies or substantial doubts in the process were revealed then there would be requests for a more rigorous assessment. The critical issue here is that the bypass proposal is a BSC project. Also, there is no consideration of the impact for future planning impact, if Council itself lowers the standards.

Consistent high standards for applications have always been a strong point if there are legal challenges. It could be difficult to require high standards from developers in the future with Council having chosen to do the ‘developer’ planning pathway of biobanking. The West Byron development also took the biobanking pathway.

David Milledge review of the Office of Environment & Heritage Biobanking application process made by GHD on behalf of BSC for Biobanking Statement ID:19 approval

Key points from his reviews of the biobanking proposal, (italics indicate the methodology rules):

• disregarding the presence of the Lowland Rainforest on Floodplain Community – enabled by the rule of less than 0.25 hectare to be subsumed within an adjoining larger vegetation zone

• the process requires a Map of the red flag areas on the development site showing each entity in the red flag area – the proposal fails to identify the rainforest TEC

• the restriction of the assessment of indirect impacts to a buffer of only 5m width is ecologically invalid

• the documents fail to recognise the rainforest by stating ‘none of these communities are found within or in the vicinity of the proposal site’

• the Red Flag Variation Assessment for the Mitchell’s rainforest snail fails to recognise the rainforest (primary habitat) and states ‘the study area is restricted to paperbark swamp forest’.

What can Council do now?

It’s simple: allow the independent survey to be undertaken and see what happens.

Community response

If you have doubts about the process and the risk that significant biodiversity may be destroyed without assessment, then please contact councillors and request support for the survey.

Councillor contacts:
[email protected]
[email protected]
[email protected]
[email protected]
[email protected]
[email protected]
[email protected]
[email protected]
[email protected]
Note: Cate and Basil voted against the bypass but you might want to contact them.

Disclaimer: I’ve heard the rumours too that I’m doing this because I want to get back on to Council. After 17 years as an elected representative, I do not want to go back on Council but I do, as a resident, feel a responsibility to check Council projects. I believe that biodiversity protection is critical and expect our council to maintain the highest standards for Byron Shire.

We live in a biodiversity hotspot; let’s ensure we protect it!

Love, Jan

♦ Echo Publications decided to print this article on its merit.
It first appeared in the Byron Shire Echo on July 24, 2019 as a paid advertisement.

Read Part 1

Former mayor Jan Barham WARNS Bypass Biodiversity destruction – ACT NOW

Byron Shire’s proud history of requiring developers to deliver high standards for biodiversity assessment is undermined by Council’s biobanking approval for the Byron bypass.


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