Unburnt NSW bushland secures a reprieve from development

Plans to clear 20 hectares of unburnt bushland for a housing development on NSW's south coast were halted today by the Federal Court following locals represented by the Environmental Defenders Office having successfully secured an undertaking from the developer, Ozy Homes.

The Manyana area was spared from this summer’s devastating bushfires, a fact described by locals as “miraculous”, but the land is currently scheduled to be bulldozed to make way for a 180-lot residential subdivision.

The EDO, representing Manyana Matters Environmental Association, successfully argued for a short reprieve for the unburnt bush and the species finding refuge there since the summer’s fires.

Justice Wigney of the Federal Court made orders noting the developer’s undertaking that no work commence while an ecologist is surveying the land for the presence of the threatened Greater Glider. The Greater Glider is the largest Australian gliding possum with a head and body length ranging from 35 – 45cm with a long furry tail measuring 45 – 60cm.

Court will return to consider the evidence in early June. The orders note Ozy Homes’ agreement to provide access to the EDO's client’s expert for site surveys.

The block at Manyana, believed to be providing a critical refuge from the surrounding burnt bush for many species, including the threatened Greater Glider, has captured the public conscience and provides a microcosm of the challenges created by competing interests following Australia’s devastating summer of fires.

Environmental Defenders Office Chief Executive David Morris was circumspect about the Court decision, noting “we are thrilled that the community has secured immediate protection of this important habitat. This is only the first step for us in assisting our clients to protect the Greater Glider and this now critical piece of land.

“Following the fires the Commonwealth listed the Greater Glider as a species requiring the highest priority for management and a key action was to protect unburnt areas. So this is a start and it is positive but we’ll be back again next week to put more evidence before the Court”.

Jorj Lowrey, spokesperson for the Manyana Matter Environmental Association Inc advised "we welcome today’s decision by the Federal Court. It’s a step in the right direction and gives us the opportunity to keep fighting for this precious unburnt mature forest in Manyana and the vulnerable wildlife seeking refuge there.”

The case relies on part of the Commonwealth Environment Protection and Biodiversity Conservation Act (EPBC Act) which allows people to step in to stop an action that will breach the law, including unapproved actions that potentially have a significant impact on Commonwealth listed species.

During Australia’s summer of bushfires, an estimated 12 million hectares of land was burnt and an estimated billion animals were killed. Development projects which may not have had a significant impact on threatened species before the fires now could.  

Morris notes “It is clear that a paradigm shift is needed to protect Australia’s incredible wildlife, which suffered so tremendously last summer. Unfortunately, through no fault of their own, the developer of this site now owns a piece of land that may be critical to the survival of the Greater Glider.”

The importance of the block at Manyana is not yet known, with key surveys now to be undertaken, but a precautionary approach is needed. Evidence put before the Court stated that unburnt areas can be important refuges for the Greater Glider.

Morris adds “this summer’s bushfires were so widespread and deep-seated that we’re only beginning to understand the profound impact they’ve had on nature. Our ability to understand the impact has been affected by the COVID-19 pandemic too.

“The proper approach needs to be to hold off on developments approved prior to the fires until fresh environmental assessments are made, because the relative important of the land that remains has dramatically increased and what is clear is that vulnerable species inhabit this site. Ultimately the whole development needs to be re-assessed in light of the changed circumstances.”

Any assessment would currently take place under Australia’s Commonwealth EPBC Act, currently under review. Morris highlighted deficiencies in the existing law and regulations, stating “there are more hurdles ahead to protect the Greater Gliders of Manyana. The fact is Australia’s environmental laws are not well equipped to protect nature in the wake of this summer’s fires. Fortunately they’re under review and that’s a terrific opportunity to have our laws upgraded to better protect our incredible animal and plant species.”

While excited by this positive first step, EDO’s clients are reluctant litigants and are still hoping for swift and decision action from Government to step in and protect the area.

Morris continued “our clients are determined to protect this important wildlife refuge, but they’d far prefer to do so without court action. In my view, a far better alternative to litigation would be decisive action by Government, but without that our clients have made it plain they will not give up on protecting this place that was – somewhat miraculously - spared from this summer’s catastrophic fires”.

There is precedent for Government land purchases to enable this type of area to be protected. In 2019, the NSW Government, Northern Beaches Council and a local community group came together to purchase land earmarked for a private residential subdivision, protecting more than 10,000 m2 of environmentally significant littoral rainforest at Newport in northern Sydney.

Image of Greater Glider courtesy of Greening Australia