Davis v Gosford City Council

This case involved an appeal to the Court of Appeal of New South Wales concerning a development application. The appeal was brought by the appellants against a decision of a judge of the Land and Environment Court, who had dismissed their appeal against a decision made by commissioners of the same court. Leave to appeal was limited to two specific legal questions.

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.