Koskiusko Alpine Club Limited v National Parks and Wildlife Service
[1988] NSWLEC 168
•03/31/1988
Land and Environment Court
of New South Wales
CITATION: Koskiusko Alpine Club Limited v. National Parks And Wildlife Service [1988] NSWLEC 168 PARTIES: APPLICANT
Koskiusko Alpine Club LimitedFIRST RESPONDENT
National Parks And Wildlife ServiceSECOND RESPONDENT
Corroboree Lodge Pty LimitedFILE NUMBER(S): 40054 of 1988 CORAM: Hemmings J KEY ISSUES: :- LEGISLATION CITED: National Parks and Wildlife Act 1974
Environmental Planning and Assessment Act, 1974CASES CITED: Randwick Municipal Council v. Crawly and Ors DATES OF HEARING: 07/03/88, 21/03/88 DATE OF JUDGMENT:
03/31/1988LEGAL REPRESENTATIVES:
JUDGMENT:
HIS HONOUR: The second respondent is the lessee of Lot198, DD44461, Parish of Guthega, County of Wallace, located in Perisher Valley within the Kosciusko National Park. Pursuant to the National Parks and Wildlife Act 1974 the first respondent granted building approval to the erection of a number of buildings thereon for the purpose of self contained apartments. The applicant is the adjoining lessee and has sought orders with respect to the lawfulness of such building approval.
On 21st March, 1988 this Court made the following interlocutory orders:
|CF2.|PSI
"I order that the first and second respondents be restrained forthwith from causing, permitting or suffering, by itself, its servants, agents or contractors the erection of any buildings on premises known as Lot198, DP44461, Parish of Guthega, County of Wallace, located at Perisher Valley, until further order of this Court. Liberty to apply on two days' notice. Exhibits may be released. Costs will be reserved."
|CF1.|PSO
The second respondent moves the Court to make the following order:
|CF2.|PSI
"2. An order that the Injunction granted by His Honour HemmingsJ. on 21March, 1988 be dissolved.
6. Alternatively to 2, that the Injunction be varied to exclude from the scope thereof the two cabins referred to in the plans attached to Annexure "A" to the affidavit of Harold Droga sworn herein on 7March, 1988."
|CF1.|PSO
The motion is supported by the first respondent. The applicant opposes the making of the orders sought, but concedes the jurisdiction of the Court to hear and determine the motion.
The grounds for the making of such variation or dissolution are:
1. The second respondent has no duties to perform pursuant to s.111 or s.112 of the Environmental Planning and Assessment Act, 1974 (the "E.P.&A.Act") and was entitled to assume that the first respondent in giving the subject approval had complied with the law in the discharge of its duties and functions.
2. If there had been a breach by the first respondent of a duty imposed by s.111 or s.112 of the E.P.&A.Act the second respondent is the innocent "victim" of such breach.
3. The applicant does not and could not claim that the erection of the buildings described as cabins in the disputed building approval has an adverse environmental impact.
4. On the balance of convenience the Court should permit the erection of such cabins.
The second respondent submits:
1. The erection of the cabins has no adverse environmental impact.
2. That if a breach of the law is ultimately found to have occurred:
a) the Court could not infer that the first respondent would not thereafter discharge its duty to consider the building application according to law; and
b) the erection of the cabins could not be assumed to fetter or prejudice the exercise of a discretion by the first respondent.
The applicant submits:
1. If there is a serious question to be determined as to the lawfulness of the building consent, all works thereunder should be restrained.
2. If it is held that an environmental impact statement is required pursuant to s.112 the existence of the cabins would be a relevant matter in such statement.
3. A decision to vary the interlocutory order may be seen as a determination of the merits of the building approval to, or the environmental significance of the cabins.
4. The hearing of this matter has been expedited and there is no evidence of inconvenience or prejudice to the second respondent if building work in connection with the cabins was restrained until judgment.
5. The erection of the cabins is likely to prejudice or fetter the exercise of the duty imposed by PartV upon the first respondent.
It is admitted for the purpose only of this motion-
By the first respondent:
|CF2.|PSI
"That the National Parks and Wildlife Service does not require an environmental impact statement to be furnished to it before granting its approval to the construction or erection of residential accommodation in Perisher Valley intended for occupation by tourists."
|CF1.|PSO
By the applicant, and subject to relevance:
|CF2.|PSI
"That it has not been required by the first respondent to furnish an environmental impact statement with regard to extensions to and renovations of the applicant's existing buildng which is in the course of completion."
|CF1.|PSO
It is common ground that this Court has the necessary jurisdiction to determine the motion of the second respondent to dissolve or vary the existing interlocutory order prior to the final hearing of the matter. The second respondent relies upon the evidence in the original hearing, together with the said admissions and evidence tendered of correspondence of the National Parks & Wildlife Service. That correspondence called for the making of a development application by the second respondent to provide buildings for the bed capacity allocation by the National Parks & Wildlife Service. It was asserted therein that such allocation was made:
|CF2.|PSI
"... after detailed and extensive consideration of all of the issues involved and having regard to the requirements of the Kosciusko National Park Plan of Management and the findings of Price Waterhouse Associates, management consultants engaged by the Service to carry out an economic analysis of commercial lodges in Perisher Valley."
|CF1.|PSI
The correspondence contained a threat of the withdrawal of the offer of the beds and a reallocation elsewhere if not provided promptly on the subject site.
I have reconsidered the evidence in the initial interlocutory hearing and the "new" material tendered by the second respondent in this motion.
No further evidence was tendered or submissions made in an attempt to persuade me to alter my finding as to the existence of a serious question to be argued on final hearing as to a likely breach by the first respondent of the duties under s.111 and s.112 of the E.P.&A.Act in the granting of the subject approval. The admissions made in this motion confirm an earlier inference that it was not the practice of the National Parks & Wildlife Service to require an environmental impact statement to be submitted to it by proponents of tourist residential accommodation in the Park.
Whether such practice is based on a belief by the first respondent that PartV is irrelevant or that tourist residential accommodation, regardless of nature, scale or location, could never be likely to significantly affect the environment cannot be ascertained by the evidence.
As I have previously observed, the second respondent has no duty to perform under s.111 or s.112 of PartV of the E.P.&A.Act.
The second respondent however, before it can lawfully obtain an approval under that Part, may have a responsibility to prepare an environmental impact statement in the prescribed form and manner {s.112(1)(a)(i)} if it is the person proposing to carry out the activity, and such is likely to significantly affect the environment. It is obvious that the said practice of the first respondent to tourist residential accommodation in the Park is the reason why a proponent such as the second respondent is apparently excused by the first respondent from the preparation of an environmental impact statement with respect to the subject activity. By such practice the first respondent probably not only breaches its duty under s.112 if it grants an approval, but also denies itself the opportunity to examine and take into account matters affecting or likely to affect the environment by an activity which has only a "real chance" or "possibility" of significantly affecting the environment; c.f. Randwick Municipal Council v. Cra
wly and Ors, 60 L.G.R.A. 279.
For the above reasons and those previously stated, I am of the opinion that there is a serious question to be resolved as to the lawfulness of the said approval and that, because of the nature and scale of the proposed development, the erection of any of the buildings pursuant to such approval would be likely to prejudice and fetter the proper exercise of the functions of the first respondent with respect to the subject land.
Notwithstanding the assistance of the submissions of senior counsel as to the "embarrassment" and economic hardship to the second respondent and the circumstances of the case, I am unpersuaded that interlocutory orders made pending the final hearing should be varied in any way.
I therefore make the following orders:
1. Motion dismissed.
2. Liberty to apply on two days' notice.
3. Costs to be reserved.
4. Exhibits may be released.
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