Davis v Gosford City Council

Land and Environment Court

New South Wales

Medium Neutral Citation:

Davis v Gosford City Council [2012] NSWLEC 62

Hearing dates:

08/03/2012; 09/03/2012

Decision date:

27 March 2012

Jurisdiction:

Class 4

Before:

Lloyd AJ

Decision:

1. A declaration that the development application lodged by the applicants with the respondent on 26 July 2011 and numbered by the respondent 40918/2011 was not required to be accompanied by a species impact statement prepared in accordance with Division 2 of Part 6 of the Threatened Species Conservation Act 1995 (NSW).

2. A declaration that the development application was made on 26 July 2011.

3. A declaration that the decision of the respondent to reject the development application under cl 51(2)(b) of the Environmental Planning & Assessment Regulation 2000 (NSW) made on 28 July 2011 was null, void and of no effect.

4. A declaration that the decision of the respondent to adhere to its decision of 28 July 2011 made on 5 September 2011 - the s 82B review - was null, void and of no effect.

5. An order that the decision of the respondent made on 28 July 2011 be set aside.

6. An order that the decision of the respondent made on 5 September 2011 be set aside.

7. An order that the respondent pay the applicants' costs of the proceedings.

Catchwords:

DEVELOPMENT APPLICATION - whether to be accompanied by a species impact statement

Legislation Cited:

Environmental Planning & Assessment Act 1979, ss 5A, 78A(8)
Environmental Planning and Assessment Regulation 2000, cl 51(2)(b)
Threatened Species Conservation Act 1995, Div 2, Pt 6
Uniform Civil Procedure Rules 2005, r 42.1

Cases Cited:

Oshlack v Richmond River Council [1998] HCA 11; 193 CLR 72
Timbarra Protection Coalition Inc v Ross Mining NL (1999) 102 LGERA 52

Category:

Principal judgment

Parties:

Raymond Davis (First Applicant)
Suzanne Davis (Second Applicant)
Gosford City Council (Respondent)

Representation:

AM Pickles (Applicants)
MC Fraser (Respondent)
Michael Flaherty (Applicants)
PJ Donnellan & Co (Respondent)

File Number(s):

40820 of 2011

Judgment

1. The applicants are the owners of land known as 168 Somersby Falls Road, Somersby, which is within an area known as Somersby Industrial Park. On 26 July 2011 they lodged a development application with Gosford City Council for "an integrated resource recovery facility" on the land. The proposed development is Designated Development and was accompanied by an environmental impact statement which included a Flora and Fauna Assessment Report. That report concluded that the development was on land that is not, nor is it part of, critical habitat, nor was it likely to significantly affect threatened species, populations or ecological communities, or their habitats.

1. Nevertheless, on 28 July 2011 the Council rejected the development application as being invalid on the ground that a species impact statement was required: s 78A (8)(b) Environmental Planning & Assessment Act 1979; cl 51(2)(b) Environmental Planning and Assessment Regulation 2000.

1. The applicants' subsequent request for a review of the Council's decision was again rejected and the decision was confirmed.

1. The applicants now come to the…