Court of Appeal
Supreme Court
New South Wales
- Summary available
Medium Neutral Citation: Davis v Gosford City Council [2014] NSWCA 343 Hearing dates: 19 May 2014 Decision date: 03 October 2014 Before: Beazley P at [1]; Ward JA at [2]; Preston CJ of LEC at [3] Decision: (1) The appeal is dismissed.
(2) The appellants are to pay the respondent's costs of the appeal to this Court.
Catchwords: APPEAL - decision of judge of Land and Environment Court (LEC) dismissing appeal against decision of commissioners of LEC on questions of law - leave to appeal limited to two matters - whether judge and commissioners erred in their assessment of the degree of effect on threatened species required for refusal of development application - whether judge and commissioners failed to consider any concurrence of Director-General - relevant matters to consider in determining development application and grounds of refusal are not limited to an effect on threatened species that is likely to be a significant effect - no actual or assumed concurrence of Director-General to be considered - development not on critical habitat and not likely to significantly affect threatened species - consent to be refused not granted - no concurrence of Director-General required or able to be granted in these circumstances - commissioners and judge did not err on questions of law - appeal dismissed with costs Legislation Cited: Endangered Fauna (Interim Protection) Act 1991 s 4A
Environmental and Planning and Assessment Act 1979, ss 4(1), 5A, 76, 76A, 76B, 77, 77A(1), 78, 78A, 79B(3), 79C, 80, 80A, 90, 97(3), 111, 112, 115N, Pt 2, Div 5 Pt 5
Environmental Planning and Assessment Regulation 2000, cll 2(1), 4(1), 50, 51, 59, 62, 64, 91(2), 92; cll 1(1), 2(1), 2(4) of Pt 1, Sch 1, cl 7 of Sch 2, Sch 3
Fisheries Management Act 1994 s 220ZZA
Land and Environment Court Act 1979, ss 39, 56A(1), 57(4)(c)
Protection of the Environment Administration Act 1991 s 6(2)
Threatened Species Conservation Act 1995, ss 4, 94A, Div 2 of Pt 6Cases Cited: BT Goldsmith Planning Services Pty Ltd v Blacktown City Council [2005] NSWLEC 210
Carstens v Pittwater Council [1999] NSWLEC 249; (1999) 111 LGERA 1
Corowa v Geographe Point Pty Ltd [2007] NSWLEC 121; (2007) 154 LGERA 117
Davis v Gosford City Council [2013] NSWLEC 49
Davis v Gosford City Council [2012] NSWLEC 1329
Davis v Gosford City Council [2012] NSWLEC 62
Michel Projects Pty Ltd v Randwick Municipal Council (1982) 46 LGRA 410
Minister for Planning v Walker [2008] NSWCA 224; (2008) 161 LGERA 423
Nambucca Valley Conservation Association v Nambucca Shire Council [2010] NSWLEC 38
Newcastle and Hunter Valley Speleological Society Inc v Upper Hunter Shire Council and Stoneco Pty Ltd [2010] NSWLEC 48
Plumb v Penrith City Council [2002] NSWLEC 223
Telstra Corporation Ltd v Hornsby Shire Council [2006] NSWLEC 133; (2006) 67 NSWLR 256; (2006) 146 LGERA 10
Timbarra Protection Coalition Inc v Ross Mining NL [1999] NSWCA 8; (1999) 46…
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- Case
- [2014] NSWCA 343
- Decision Date
CaseChat Overview and Summary
The primary legal issues before the Court of Appeal were whether the judge and the commissioners had erred in their assessment of the degree of effect on threatened species that would necessitate the refusal of a development application, and whether they had failed to consider any concurrence from the Director-General. The appellants contended that the relevant considerations for determining a development application and grounds for refusal were not confined to effects on threatened species that were likely to be significant.
The Court of Appeal, applying the reasoning of the respondent, determined that section 5A of the *Environmental Planning and Assessment Act 1979* (NSW) was intended to address the administrative and mechanical provisions of the Act, particularly where a determination of significant effect was required. The court found that the legislative history indicated that amendments to section 79C, which replaced the more specific considerations of the former section 90, were intended to generalise the heads of consideration. Consequently, while threatened species remained a relevant consideration within the general framework, specific mention of "likely to be a significant effect" was no longer a standalone requirement for refusal. The court concluded that the commissioners and the judge had not erred on questions of law, particularly as the development was not on critical habitat and was not likely to significantly affect threatened species, meaning no concurrence from the Director-General was required or could have been granted.
The appeal was dismissed, and the appellants were ordered to pay the respondent's costs.
Orders
Orders of the court
(1) The appeal is dismissed.
(2) The appellants are to pay the respondent's costs of the appeal to this Court.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Full text does not contain this section.
Ratio Decidendi
Legal Principle Established
Established by: PRESTON CJ
The respondent submitted that the appellants' construction of s 5A and s 79C was incorrect. The respondent first focussed on s 5A. The text and context of s 5A show that it is intended to deal with two matters: "firstly, the administration of the named sections; and secondly, is to be used where the Act requires a determination of significant effect". (at [33] of the respondent's written submissions). The respondent noted that the term "administration" in the chapeau of s 5A(1) is not defined or otherwise used in any of the sections that it enumerates. However, the EPA Act does utilise the term in Pt 2 which deals specifically with the mechanics of how the EPA Act will work. The use of this term in that context, the respondent submitted, is consistent with the ordinary meaning of the word "administration" (referring to the Macquarie Dictionary definition) (at [34] of the respondent's written submissions). The respondent submitted that when this ordinary and natural meaning is applied to the word "administration" in s 5A, the intent of the provision becomes apparent: it is intended to deal with the mechanical provisions required by the EPA Act. The respondent submitted that the EPA Act provides a regime for administration of, inter alia, development control and assessment. This regime requires the interaction of different provisions of the EPA Act and the mechanism for how such provisions will interact. For the consideration of a development application such as the one the subject matter of this appeal, the EPA Act relevantly provides that: The respondent submitted that: The respondent also submitted: The respondent took issue with the appellants' summary of the legislative history of s 79C and s 5A and the conclusions the appellants drew from their summary. The respondent submitted that the TSC Act impacted on the operation of the EPA Act and therefore consequential amendments to the EPA Act were made, including the introduction of s 5A and the insertion of a new mandatory consideration in s 90(c3) "whether there is likely to be a significant effect on threatened species ...". Reference was made to s 90 in the chapeau of s 5A(1) because s 90 required consideration of a development application. Section 77 was also mentioned because it made provision for what comprised a development application and when a SIS was required. When the EPA Act was amended in 1997 to substitute a reduced and general list of considerations in s 79C for the more numerous and specific considerations in the former s 90, the references in s 5A to ss 77 and 90 were merely updated to refer to the now relevant sections of s 78A and s 79C. (at [43] of the respondent's written submissions). The respondent submitted that there is nothing to suggest that the amendment of the heads of consideration from those in s 90 to those in s 79C, including the deletion of the previous consideration of the likely significant effect on threatened species, was intended to effect the statutory consequence contended for by the appellant. Rather, the language changed to more generalised heads of consideration - threatened species remain in the general context and did not require specific mention. (at [42] of the respondent's written submissions).