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The proposal to provide off-leash dog areas on the foreshores of Bundeena and Maianbar
raises a number of significant legal and environmental issues regarding the protection and
conservation of threatened, endangered and migratory birds in the area.
Comments

The provision of an off-leash dog area without a licence and / or concurrence from the
NSW Minister for Climate Change and the Environment and Federal Minister for the
Environment, Heritage and the Arts may be in breach of State and Federal
environmental legislation and can incur heavy penalties up to a maximum of
$550,000 for an individual and $5.5million for a corporation- (see legislation
below).

The recorded occurrence of endangered, threatened and migratory birds at Bundeena
and Maianbar triggers the need for Council to comply with the relevant legislation and
international agreements.
To provide an off-leash dog area Council must demonstrate under the provisions of
the Environmental Planning and Assessment Act (1979), National Parks and Wildlife
Act (1974), Threatened Species Conservation Act (1995) and the Environmental
Protection and Biodiversity Conservation Act (1999) why such an activity / area is
necessary and how it will not have any significant adverse impact on migratory,
threatened and endangered bird species. Under NSW legislation a Species Impact
Statement (7 part test) is required as part of this process.

The pressures associated with habitat loss and diminished food resources are
compounded by the extreme sensitivity of many shore / migratory birds to
disturbances.
When birds are disturbed they do not immediately settle but spend time assessing the
threat. The time invested on being more vigilant is time that would otherwise have
been spent foraging for food. For most shore birds this becomes a critical issue as
there are only limited opportunities to feed during the intertidal periods of the day
when the mudflats and sandbars become exposed for foraging.
Any reduction in food uptake has serious implications on migratory birds as they must
build up sufficient fat reserves to fuel their return journey to regions such as Japan,
Korea and Siberia. If a bird has insufficient fat reserves it may delay its return flight or
perish on transit. For birds that return the consequence of a delay is that competition
for nesting space from other bird species and reduced availability of mates severely
affects breeding success.

Research undertaken as part of the Port Botany EIS (2003) indicates that disturbance
to migratory / shore birds can occur at distances 30 to 90% further than the point at
which they take flight and that these distances can range from 100 to 400m. Because
the width of the tidal zone to upper beach can be narrow, risk of disturbance to the
birds when foraging and or roosting is most likely to occur. The disturbance on the
birds from dogs and other activity in this area is potentially quite significant.

The impact to migratory birds in this area is reinforced by urban development
encroaching onto the foreshores and the expansion of Sydney Airport and Port Botany
over the past 40 years. The available habitat for local and migratory birds has severely
diminished, concentrating populations on smaller and suboptimal areas, reducing food
resources increasing competition and making them more vulnerable to predation by
feral cats and foxes.

Proposal does not support Council’s core strategic direction under its Strategic Plan
Our Shire our Future– Shaping the Shire to 2030, to “Conserve our abundant native
flora and fauna”.
The following is provided for further information regarding the above.
Relevant Legislation
The following summaries key elements of State and Federal legislation relevant to this
issue.
Environmental Protection and Biodiversity Conservation Act (1999)
Under “Subdivision C – Listed Threatened Species and Communities
Section 18 Actions with significant impact on listed threatened species or endangered
community prohibited without approval”,
subsections 2,3,4,5 state that for Critically Endangered, Endangered, Vulnerable fauna
species
“A person must not take an action that:
(a) has or will have a significant impact on a listed threatened
species included in the [ critically endangered, endangered, vulnerable] category; or
(b) is likely to have a significant impact on a listed threatened
species included in the [ critically endangered, endangered, vulnerable] category.”
And under section 18A
“A person is guilty of an offence if:
(a) the person takes an action; and
(b) the action results or will result in a significant impact on:
(i) a species; or
(ii) an ecological community; and
(c) the species is a listed threatened species, or the community is
a listed threatened ecological community.”
For Migratory Bird Species:
Under “Subdivision D – Listed migratory species
Subsection 20 Requirement for approval of activities with a significant impact
on a listed migratory species”..
“(1) A person must not take an action that:
(a) has or will have a significant impact on a listed migratory
species; or
(b) is likely to have a significant impact on a listed migratory
species.”
20A Offences relating to listed migratory species
(1) A person is guilty of an offence if:
(a) the person takes an action; and
(b) the action results or will result in a significant impact on a
species; and
(c) the species is a listed migratory species.
Note: Chapter 2 of the Criminal Code sets out the general principles of
criminal responsibility.
(1A) Strict liability applies to paragraph (1)(c).
Note: Subject to further scientific assessment of the known sensitivity of shore bird species the
limited range of habitat available at Bundeena and Maianbar and the bird’s close proximity to
potential exposure and frequent disturbance from walkers (with or without dogs) and other
activities may currently trigger offences under the Act.
Environmental Planning and Assessment Act (1979)
Under the EP&A Act (1979) a species impact statement must accompany a
development application for development that –
-
is on land that is critical habitat, or
is likely to significantly affect threatened species, populations, ecological
communities or their habitats.
Section 5A of the EP&A Act requires that 7 factors (7 Part Test) be taken into account in
determining if there is likely to be a significant impact on threatened species, populations
or ecological communities. When a species impact statement is required Council must
under ss 79B(2), 112C(1) obtain the concurrence of the Director- General of the
Department of Environment and Climate Change to the grant of development consent
or approval.
National Parks and Wildlife Act (1974) and Threatened Species Conservation Act (1995)
A licence must be obtained by Council under the National Parks and Wildlife Act (NPW
Act) or the Threatened Species Conservation Act where a threatened species, population
or ecological community is impacted upon. Under part 8A of the NPW Act potential harm
to a threatened species, population or ecological community will trigger this requirement.
Applications for licences under the Threatened Species Conservation Act (TSC Act) are
made to the NPWS Director-General, who is responsible for issuing licences (TSC Act, s
92(1), 99). If the activity to be licenced will take place on land that is critical habitat, the
application must be accompanied by a species impact statement (TSC Act, s 92(2)). If a
species impact statement is not compulsory, the NPWS Director-General can decide that
one is necessary if the action is likely to significantly affect threatened species (TSC Act, s
94, 94A).
. What is a Threatened and Endangered Species?
In NSW, the following things can be listed:

Individual species

Populations

Ecological communities.
These things can be listed under the TSC Act once they reach a particular level of
endangerment (eg vulnerable, endangered, critically endangered). All of the listings are
collectively known as “threatened species, populations and ecological communities”, or
are often just referred to as “threatened species”.
Individual species
Individual species can be listed under the TSC Act as:

Presumed extinct
not recorded in its known or expected habitat within its lifecycle

Critically endangered
facing an extremely high risk of extinction in NSW in the immediate future

Endangered
facing a very high risk of extinction in the near future

Vulnerable
facing a high risk of extinction in the medium-term future
Threatened, Endangered Species: Bundeena Maianbar
The following table lists bird species recorded at Bundeena / Maianbar and immediate
region. The lists are based on the NPWS threatened species atlas, Sydney Catchment
Authority and Port Botany EIS. It should be noted that the occurrence of bird species in an
area may appear limited but this is reflective of the limited degree of study and surveys
undertaken over time. The close proximity of Bundeena and Maianbar to key but
diminishing habitats in the Botany Bay area suggests that many more migratory and
regional shore birds are likely to use this area for the foraging of food and or roosting
Listed Below are Shore Bird and Migratory Bird Species that frequent the Port Hacking / Botany Bay area. Information is
based on NPWS, Sydney Catchment Authority (CMA) and Port Botany EIS (2003) information.
Conservation Status E =Endangered, V= Vulnerable, P = Protected, M,J,C = Migratory (JAMBA and CAMBA)
Species
Taren Point Shorebird
Community
Characteristic
assemblage of the
following 20 species:
Bar-tailed Godwit
(Limosa lapponica),
Red Knot
(Calidris canutus),
Great Knot
(Calidris tenuirostris),
Sharp-tailed Sandpiper
(Calidris acuminata),
Curlew Sandpiper
(Calidris ferruginea),
Red-necked Stint
(Calidris ruficolli),
Common Sandpiper
(Actitis hypoleucos),
Terek Sandpiper
(Xenus cinereus),
Latham’s Snipe
Conservation Habitat Requirements
Status
E, M,J,C

The birds leave Australia between April
and May. However juveniles, nonbreeders or under-weight individuals
often will not migrate north, remaining in
their southern foraging grounds over

The community usually forage as
separate guilds (groups of species)
during low tide in locations adjacent to
the roost site.

The substrates found in the Taren Point
area are rich in invertebrates upon which
shorebirds feed.
Endangered
Ecological
Community
Comments
The declining habitat in the Botany Bay area
suggests that some individuals from this
endangered community are likely to fly south at
low tide to forage on exposed intertidal flats off
Maianbar.

The majority of these species breed in the
northern hemisphere, including northeast
Siberia and Alaska. They breed during
June/July then leave the breeding grounds
and migrate south between August and
September.

They spend the austral summer in
Australia, New Zealand, Indonesia,
southern Asia and Africa. Upon arrival in
Australia, they generally return to
traditional feeding and roosting locations
Threats

Loss of feeding and roosting habitat.

Fragmentation or isolation of sites within
(Gallinago hardwickii),
Grey-tailed Tattler
(Heteroscelus brevipes),
Grey Plover
(Pluvialis squatarola),
Pacific Golden Plover
(Pluvialis fulva),
Common Greenshank
(Tringa nebularia),
Masked Lapwing
(Vanellus miles),
Marsh Sandpiper
(Tringa stagnatili),
Ruddy Turnstone
(Arenaria interpres),
Pied Oystercatcher
(Haematopus
longirostris), Sooty
Oystercatcher
(Haematopus
fulinginosus), Whimbrel
(Numenius phaeopus),
and Eastern Curlew
(Numenius
madagascariensis).
feeding areas resulting in decreasing
abundance.

Human disturbance at roost and feeding
sites.

Disturbance by dogs at roost and feeding
sites.

Pollution.
Recovery Strategies
Priority actions are the specific, practical things
that must be done to recover a threatened
species, population or ecological community. The
Department of Environment Conservation and
Climate Change has identified 20 priority actions
to help recover the Taren Point Shorebirds in New
South Wales.
What needs to be done to recover this species?

Raise public awareness and education of
the importance of shorebirds and their
habitats within the community and local
Council.

Work closely with Wader Study Groups
and agencies across Australia and
internationally who have responsibility for
migratory waders.

Reduction of disturbances and threatening
processes.
Pied Oystercatcher
Haematopus
longirostris
Sooty Oyster Catcher
Haematopus fuliginosus
V
Forages on exposed sand, mud and rock at low
tide, for molluscs, worms, crabs and small fish.
Nests mostly on coastal or estuarine beaches
although occasionally they use saltmarsh or
grassy areas. Nests are shallow scrapes in sand
above the high tide mark, often amongst
seaweed, shells and small stones.
V
Favours rocky headlands, rocky shelves,
exposed reefs with rock pools, beaches and
muddy estuaries.
Forages on exposed rock or coral at low tide for
foods such as limpets and mussels.

Protection of existing habitat

Protect important shorebird habitat
elsewhere that is utilised by these species.

Creation of new suitable habitat.

Monitor the shorebirds within Botany Bay
and other sites in NSW where these
species occur.

Research into the ecology and movement
of the species occurring at Taren Point.

Identify sites of importance for inclusion in
reserve systems or recognition under
Ramsar.
Threats identified by (NPWS): Disturbance to
coastal feeding, nesting and roosting areas
through beach-combing, fishing, dog-walking,
horse-riding and 4WD vehicles.
Predation of eggs and chicks by foxes, dogs, cats,
Australian Ravens and raptors.
Threats identified by NPWS: Disturbance to
coastal feeding, nesting and roosting areas
through beach-combing, fishing, dog-walking,
horse-riding and 4WD vehicles.
Predation of eggs and chicks by foxes, dogs, cats,
rats and raptors
Little Tern
Sterna albifrons
Bar Tailed Godwit
Limosa lapponica
E
Occassionally seen in Port Hacking
M, J, C
Usually found in sheltered bays, estuaries and
lagoons with large intertidal mudflats and/or
sandflats.
Feeds on intertidal mudflats.
Forages for insects, crustaceans, molluscs,
worms, larvae, spiders, fish eggs, frog eggs and
tadpoles in soft mud or shallow water.
Beach Stone-curlew
Esacus neglectus
E1
Eastern Curlew
Numenius
madagascarienes
M,J,C
Osprey
Pandion haliaetus
Chestnut Teal
Anas castanea
V
P
Roosts and loafs on low banks of mud, sand and
shell bars
The Beach Stone-curlew occurs on open,
undisturbed beaches, islands, reefs and
estuarine intertidal sand and mudflats
The Beach Stone-curlew forages on large,
intertidal mudflats, sandflats, sandbanks
and sandpits exposed by low tide
Threats (NPWS) Susceptible to human
disturbance
through beach-combing, boating and
4WD vehicles, Predation by raptors, cats and
dogs
Intertidal sand and mudflats. Usually roosts at
Recorded in the area. Feeds over much of the
high tide on beaches or in salt marshes It breeds intertidal mudflats. The Eastern Curlew roosts on
in Russia and north-eastern China. On passage, sandy spits and islets, especially on dry beach
they are commonly seen in Japan, Korea and
sand near the high-water mark,
Borneo.
The species is uncommon to rare or absent from
closely settled parts of south-eastern Australia.
Is one of the few ducks able to tolerate high
salinity waters. The Chestnut Teal eats seeds
and insects, along with some vegetation, as well
Common Sandpiper
Actitis hypoleucos
P
Double-banded Plover
Charadrius bicinctus
Masked Lapwing
Vanellus miles
Caspian Tern
Sterna caspia
P
Crested Tern
Sterna bergii
White fronted Tern
Sterna striata
Common Tern
Sterna hirundo
P
Royal Spoonbill Platalea
regia
P
as molluscs and crustaceans in more coastal
habitats. It mainly feeds at the water's edge
during the rising tide, dabbling at food items
being washed in.
The Common Sandpiper breeds in Europe and
Asia. In Australasia it visits New Guinea and
Australia. It is found mainly on muddy edges or
rocky shores. It hunts by day, eating small
molluscs, aquatic and terrestrial insects
P
P
Usually found near the coast, in extensive
wetlands, on coastal and interior beaches and
sheltered estuaries. The nest is a deep scrape,
usually unlined, but occasionally sparsely ringed
with debris or scraps of local vegetation such as
saltbush.
P
P
mainly coastal when not breeding and found in
offshore waters, ocean beaches, estuaries and
large lakes. The Common Tern breeds in
temperate Europe, Asia and North America. The
nest is a shallow depression, usually on bare
ground, unlined or sparsely lined with twigs,
seaweed, feathers, small stones and shells.
Found in shallow freshwater and saltwater
wetlands, intertidal mud flats and wet grasslands
Australian White Ibis
Threkiornis caledonicus
P
Nankeen Night Heron
Nycticorax caledonicus
Striated Heron
Butorides striatus
Great Egret
Ardea alba
Little Egret
Egretta garzetta
Australian Pelican
Pelecanus conspicillatus
Darter
Anhinga melanogaster
Pied Cormorant
Phalacrocorax varius
Little Black Cormorant
Phalacrocorax
melanogaster
Little Pied Cormorant
Phalacrocorax
P
Feeds mainly on fish in freshwater, and on
shrimps in tidal flats; it will also eat other
crustaceans and aquatic insects.
The Royal Spoonbill is not tolerant of
disturbances, especially when breeding, and
destruction of habitat by land-clearing, drainage,
increased salinity or flooding and weed invasion
are all detrimental to both feeding and breeding.
Range of food includes both terrestrial and
aquatic invertebrates. The most favoured foods
are crayfish and mussels,
P
P
P
P
P
P
P
The Pied Cormorant mainly feeds on fish, but
will also take crustaceans and molluscs.