Byron Property Developments Pty Ltd v Byron Shire Council - [2010] NSWLEC 1026

Land and Environment Court

of New South Wales

CITATION: Byron Property Developments Pty Ltd v Byron Shire Council [2010] NSWLEC 1026

PARTIES:
APPLICANT
Byron Property Developments Pty Ltd
RESPONDENT
Byron Shire Council

FILE NUMBER(S): 10399 of 2009

CORAM: Dixon C

KEY ISSUES: THREATENED SPECIES :- Removal of threatened species, s5A(1) and (2) of the EPA Act.

LEGISLATION CITED: Environmental Planning and Assessment Act 1979
Threatened Species Conservation Act 1995

CASES CITED: Corowa v Geographe Point Pty Ltd & Anor [2007] NSWLEC 121
Gales Holdings Pty Limited v Tweed Shire Council [2008] NSWLEC 209

DATES OF HEARING: 8-9 September 2009 and 16 September 2009

DATE OF JUDGMENT:
5 February 2010

LEGAL REPRESENTATIVES:
APPLICANT
Mr K Webber (solicitor)
SOLICITOR
Wilshire Webb Staunton Beattie
RESPONDENT
Mr A Seton (solicitor)
SOLICITOR
Marsdens Lawyers

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Dixon C.

5 February 2010

10399 of 2009 Byron Property Developments Pty Ltd v Byron Shire Council

JUDGMENT

Introduction

1 The applicant, Byron Property Developments Pty Ltd seeks consent to construct four detached dwellings, two swimming pools and parking at 51 Shirley Street Byron Bay in accordance with its development application (DA10.2008.387.1) lodged on 20 June 2008.

2 The Council has issued consent to that application on 24 October 2008 but has attached conditions that delete dwelling 4.

3 This is an appeal, pursuant to section 97(1) of the Environmental Planning and Assessment Act 1979, (EPA Act) against the consent specifically the conditions which delete dwelling 4.

4 The council contends it deleted dwelling 4 because it was to be built in an area which contains vegetation of high conservation value including vegetation which meets the floristic characteristics of one Endangered Ecological Community pursuant to the Threatened Species Conservation Act 1995 Littoral Rainforest in the NSW North Coast, Sydney Basin and South East Corner Bioregions (EEC) and two threatened species pursuant to the Threatened Species Conservation Act 1995 (TSC Act) being:

5 The council’s contentions are:

6 The applicant contends on its evidence, including an assessment under section 5A of the EPA Act 1979 (a seven part test) in respect of the threatened species and EEC there is no unacceptable environmental impacts in terms of vegetation removal caused by dwelling 4 and it should be approved.

7 To determine the contentions I must assess the impacts of the removal of vegetation to accommodate dwelling 4 and make a determination under section 5A of the EPA Act 1979 as to whether there is likely to be a significant effect on threatened species, populations or ecological communities, or their habitats before dealing with the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2010] NSWLEC 1026
Decision Date: 5 February 2010

CaseChat Overview and Summary

Byron Property Developments Pty Ltd sought consent from the Byron Shire Council to construct four detached dwellings, two swimming pools and parking at 51 Shirley Street, Byron Bay. The Council issued consent on 24 October 2008 but deleted dwelling 4 because it was to be built in an area which contains vegetation of high conservation value. The applicant appealed against the conditions which deleted dwelling 4. The legal issues the Court had to decide were whether the removal of vegetation to accommodate dwelling 4 would have unacceptable environmental impacts and whether sufficient information had been provided to adequately assess the impacts. The Court held that the applicant had not provided sufficient information to enable the Court to make the determination required by section 5A(1) of the EPA Act 1979. The Court found that the applicant's experts limited their physical investigation of the ecological issues to the boundaries of the site, data base searches and local knowledge. This limited assessment undermined the integrity of the applicant's evidence. In contrast, Ms Matthes, who had been involved with the matter from the lodgement of the development application, had an in-depth understanding of the site and surrounding area and the relevant planning controls. The Court found that Ms Matthes' evidence was critical of the applicant's seven part test because of the limited investigation it was based on. The Court held that the applicant had not provided sufficient information to enable the Court to make the determination required by section 5A(1) of the EPA Act 1979 and therefore could not approve dwelling 4. However, dwelling 4 was the only issue that council had raised in respect of this development appeal. The Court was satisfied on the evidence that the development application should be approved for the 3 dwellings subject to conditions.

Orders