Hornsby Shire Council v Vitone Developments Pty Ltd - [2003] NSWLEC 272

Land and Environment Court

of New South Wales

CITATION: Hornsby Shire Council v Vitone Developments Pty Limited [2003] NSWLEC 272

PARTIES: Hornsby Shire Council (Appl)
Vitone Developments Pty Limited (Resp)

FILE NUMBER(S): 40500 of 2003

CORAM: McClellan CJ

KEY ISSUES: Development Application - Judicial Review :- Whether species impact statement required
Whether development consent void due to absence of jurisdictional fact
Whether endangered ecological community existed on site
Construction of Final Determination of Scientific Community
Conflicting methodologies of expert witnesses
Whether council estopped from challenging validity of consent
Whether s 101 Environmental Planning and Assessment Act a bar to proceedings
Whether s 101 is privative clause which does not operate to prevent challenge on ground of jurisdictional error
Uncertainty of Final Determination
Discussion of consequences of criminal offences in relation to endangered ecological communities
Problems for ordinary citizen in identifying community

LEGISLATION CITED: Environmental Planning and Assessment Act 1979
Threatened Species Conservation Act 1995
National Parks and Wildlife Act 1974

CASES CITED: Baulkham Hills Shire Council v Cosmopolitan Homes No 2 Pty Ltd (1986) 61;
Breitkopf v Wyong Council (1996) 90 LGERA 269);
Brickworks Limited v The Council of the Shire of Warringah (1963) 108 CLR 568;
Canterbury Municipal Council v Perri (1982) 47 LGRA 111;
Coffs Harbour Shire Council v Ben Hall Industries Pty Ltd (1983) 48 LGRA 391;
Coles Supermarkets Australia Pty Ltd v Minister for Urban Affairs and Planning (1996) 90 LGERA 341;
Egan v Hawkesbury City Council (1993) 79 LGERA 321;
F N Eckold Pty Ltd v Auburn Municipal Council (1975) 34 LGRA 114;
Greenpeace Australia v Redbank Power Co (1994) 86 LGERA 143 ;
Hawkesbury City Council & Anor v Sammut (2002) 119 LGRA 171.;
Hillpalm Pty Ltd v Heaven's Door Pty Ltd (2002) 55 NSWLR 446;
Holidays A-Float Pty Ltd v Hornsby Shire Council (1992) 75 LGRA 127;
Jurkovic v City of Port Adelaide (1979) 41 LGRA 71;
Leatch v National Parks & Wildlife Service & Anor (1993) 81 LGERA 270;
Nicholls v Director-General of National Parks and Wildlife (1994) 84 LGERA 397;
Plaintiff 5157/2002 v Commonwealth of Australia (2003) 195 ALR 24;
Plumb v Penrith City Council (2002) NSWLEC 223;
Proudman v Dayman (1941) 67 CLR 536;
R v Hickman; Ex parte Fox and Clinton [1945] 70 CLR 598);
Rockdale Municipal Council v Duffy Bros Pty Ltd (1974) 29 LGRA 279;
Sericott v Snowy River Council (1999) 108 LGERA 66;
Timbarra Protection Coalition v Ross Mining NL (1999) 46 NSLWR 55;
Trimboli v Penrith City Council (1981) 48 LGRA 323;
Vanmeld Pty Ltd v Fairfield City Council (1999) 46 NSWLR 78; 101 LGERA 297;
VAW (Kurri Kurri) Pty Ltd v Scientific Committee (Established under s 127 of the Threatened Species Conservation Act 1995) [2003] NSWCA 297;
Warringah Shire Council v Sedevcic (1987) 10 NSWLR 335

DATES OF HEARING: 22-26 September 2003

DATE OF JUDGMENT:
11/11/2003

LEGAL REPRESENTATIVES:

A E Galasso (Barrister - Appl)
Abbott Tout (Solicitors - Appl)
J E Robson (Barrister - Resp)
McPhee…

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: [2003] NSWLEC 272
Decision Date: 11/11/2003

CaseChat Overview and Summary

The applicant, Hornsby Shire Council, sought a declaration that the development consent granted in 1998 and the subdivision approval were void and of no effect. The Council alleged that the development application was not accompanied by a Species Impact Statement (SIS) as required by s 78A(8)(b) of the Environmental Planning and Assessment Act 1979. The respondent, Vitone Developments Pty Limited, is the owner of the relevant land and is the family company of Mr Robert Ghisla. The property contains the family home and is located within a developed residential area. The land in question is Lot 102 in Deposited Plan 1007427, located at 39-47 Robert Road and 20 Ashford Road Cherrybrook, with an area of approximately 1.75 hectares. The approved subdivision provides for 17 residential allotments with appropriate road and drainage works. The subdivision was contemplated as occurring in stages, with Stage 1 providing for the creation of one lot, Lot 101, which has been sold and upon which a dwelling has been erected.

The court considered whether the Council was estopped from challenging the validity of the consent it had granted. The Council argued that the requirement for a species impact statement played a significant role in the legislative scheme and was an essential pre-condition to any valid decision by the Council. The respondent contended that the Council was estopped from challenging the validity of the consent it had granted. The court held that if the Council’s submission was correct, no estoppel could arise.

The court also examined whether s 101 of the Environmental Planning and Assessment Act was a bar to the proceedings. The section provides that if public notice of the granting of a consent is given in accordance with the regulations by a consent authority, the validity of the consent cannot be questioned in any legal proceedings except those commenced in the Court by any person before the expiration of three months from the date on which public notice was given. The court concluded that the issues had not been adequately explored in argument and expressed no concluded view as to the effect of the council’s notification of the consent.

The court then considered the evidence of expert witnesses regarding the existence of the Blue Gum High Forest ecological community on the land. Dr David Robertson and Mr Steve Douglas, both ecologists, provided differing opinions on whether the community existed on the site. The court preferred Robertson’s evidence and concluded that the site lacked the necessary representative structure and the presence of exotic species precluded the conclusion that a Blue Gum High Forest ecological community presently existed on the site.

The court also discussed the discretion to grant relief and the potential difficulties in the administration of the Threatened Species Conservation Act. The court acknowledged that the integrity of the legislative scheme may be threatened if significant uncertainties remain and suggested that a catalogue containing the parcels of land where the relevant communities have been identified could be utilised.

For these reasons, the application was dismissed, and the applicant was ordered to pay the respondent’s costs.

Orders