Nambucca Valley Conservation Association v Nambucca Shire Council - [2010] NSWLEC 38

No judgment structure available for this case.

Land and Environment Court

of New South Wales

CITATION: Nambucca Valley Conservation Association v Nambucca Shire Council [2010] NSWLEC 38

PARTIES:
APPLICANT:
Nambucca Valley Conservation Association Inc.
FIRST RESPONDENT:
Nambucca Shire Council
SECOND RESPONDENT:
Paul Joseph

FILE NUMBER(S): 41213 of 2008

CORAM: Biscoe J

KEY ISSUES: JUDICIAL REVIEW :- validity of development consent for rural-residential subdivision – whether council refused consent or, if so, whether council officer had authority to refuse – whether species impact statement required – jurisdictional fact whether development likely to significantly affect threatened species, populations or ecological communities – whether environmental management plan or draft condition requiring same had to be before council – whether council failed to consider mandatory relevant considerations – whether council impermissibly deferred matters for later assessment – whether amended development application should have been advertised – whether legislative intention that non-compliance with legislation should result in invalidity – whether instead of declaration or determination of invalidity an order should be made under s 25B Land and Environment Court Act 1979

LEGISLATION CITED: Evidence Act 1995, s 79
Environmental Planning and Assessment Act 1979, ss 5A, 78A(8)(b), 79A, 79C, 80, 80A, 81
Environmental Planning and Assessment Regulation 2000, cll 5, 86, 87, 88, 89, 90, 91, 286C(2)(a)
Land and Environment Court Act 1979, s 25B
Land and Environment Court Rules 2007, r 4.2
Nambucca Development Control Plan No 12 – Advertising Development 2000
Nambucca Development Control Plan No 12 – Notification and Advertising 2004
Nambucca Local Environmental Plan 1995
Native Vegetation Act 2003
State Environmental Planning Policy No 44 – Koala Habitat Protection
Threatened Species Conservation Act 1995

CASES CITED: Aldous v Greater Taree City Council [2009] NSWLEC 17, 167 LGERA 13
Austral Monsoon Industries Pty Ltd v Pittwater Council [2009] NSWCA 154, 166 LGERA 436
Belmorgan Property Development Pty Ltd v GPT Re Ltd [2007] NSWCA 171, 153 LGERA 450
Boral Resources (Country) Pty Ltd v Clarence Valley Council [2009] NSWLEC 81
Boral Resources (Country) Pty Ltd v Clarence Valley Council (No 2) [2009] NSWLEC 133
B T Goldsmith Planning Services Pty Ltd v Blacktown City Council [2005] NSWLEC 210
Cameron v Nambucca Shire Council (1997) 95 LGERA 268
Caroona Coal Action Group Inc v Coal Mines Australia Pty Ltd (No 2) [2010] NSWLEC 1
Castle Constructions Pty Ltd v North Sydney Council [2008] NSWLEC 137
Corowa v Geographe Point Pty Ltd [2007] NSWLEC 121, 154 LGERA 117
Currey v Sutherland Shire Council (1998) 100 LGERA 365
Ex parte Renouf [1924] 24 SR (NSW) 463
Gales Holdings Pty Ltd v Tweed Shire Council [2008] NSWLEC 209
Gedeon v Commissioner of the New South Wales Crime Commission [2008] HCA 43, 236 CLR 120
GPT Ltd v Belmorgan Developments Pty Ltd [2008] NSWCA 256, 72 NSWLR 647
Gunning Sustainable Development Association Inc v Upper Lachlan Council [2005] NSWLEC 23, 138 LGERA 281
Hamod v Minister for Urban Affairs and Planning [2009] NSWLEC 24
House of Peace Pty Ltd v Bankstown City Council [2000] NSWCA 44, 48 NSWLR 498
Manly Council v Hortis [2001] NSWCA 81, 113 LGERA 321
Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
Motorplex (Australia) Pty Ltd v Port Stevens Council [2007] NSWLEC 74
Neighbourhood Association DP 285249 v Watson [2008] NSWSC 876, 162 LGERA 322
Oshlack v Richmond River Council (1993) 82 LGERA 222
Panagopoulos v Willoughby City Council (1992) 78 LGERA 270
Plumb v Penrith City Council [2002] NSWLEC 223
Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28, 194 CLR 355
Pselletes v Randwick City Council [2009] NSWCA 262, 168 LGERA 59
Schroders Australia Property Management Ltd v Shoalhaven City Council [2001] NSWCA 74
Shanahan v Strathfield Municipal Council [1973] 2 NSWLR 740
The Queen v Australian Broadcasting Tribunal; Ex parte Hardiman [1980] HCA 13, 144 CLR 13
Timbarra Protection Coalition Inc v Ross Mining NL [1999] NSWCA 8, 46 NSWLR 55
Townsend v Evans Shire Council [2000] NSWLEC 163, 109 LGERA 336
Weal v Bathurst City Council [2000] NSWCA 88, 111 LGERA 181
Woolworths Ltd v Pallas Newco Pty Ltd [2004] NSWCA 422, 61 NSWLR 707

DATES OF HEARING: 11-12 August 2009
20-21October 2009

DATE OF JUDGMENT:
18 March 2010

LEGAL REPRESENTATIVES: APPLCANT:
Mr M Seymour
SOLICITORS:
Environmental Defender's Office

FIRST RESPONDENT:
Ms M Allars
SOLICITORS:
Deacons Lawyers
SECOND RESPONDENT:
Mr W Carney
SOLICITORS:
Stacks/Prime Law

JUDGMENT:

ENVIRONMENT COURT
OF NEW SOUTH WALES

18 March 2010

41213 of 2008
NAMBUCCA VALLEY CONSERVATION ASSOCIATION v NAMBUCCA SHIRE COUNCIL & ANOR

CONTENTS

Paragraphs

Introduction 1-3

Background 4-48

Ground 1: Refusal 49-72

Ground 2(a): Species Impact Statement 73-145

Ground 2(b): Environmental Management Plan 146-166

Ground 3: Mandatory Considerations 167-192

Ground 4: Deferral 193-197

Ground 5: Advertising 198-239

Other considerations 240-243

Costs 244

Orders 245-246

INTRODUCTION
1 HIS HONOUR

: The applicant, Nambucca Valley Conservation Association Inc, challenges the validity of a development consent granted on 21 August 2008 by the first respondent, Nambucca Shire Council, for a seven lot subdivision of a 68 hectare site (Land) at 346 East West Road, Valla under the Environmental Planning and Assessment Act 1979 (EPA Act). The development comprises five rural-residential lots ranging from 1.04 to 1.3 hectares, which satisfied the minimum one hectare lot size required by the Nambucca Local Environmental Plan 1995 (LEP); one community title lot of over seven hectares; and a large residual lot of about 56 hectares: see [41] and [43] below. The development application was lodged on behalf of the second respondent, Mr Paul Joseph (proponent).

2 The challenge to validity is on five grounds:

(1) the council refused the development application on about 8 July 2004 and all else done thereafter was inconsistent with the refusal;
(2) essential documents were not before the council:

(a) a species impact statement, and
(b) an environmental management plan or a draft condition requiring an environmental management plan;

(3) the council failed to consider mandatory relevant considerations;
(4) the council impermissibly deferred for later consideration important matters of environmental assessment;
(5) the amended development application to which consent was eventually granted was not advertised as required by statute.

3 I uphold grounds 3 and 5, do not accept the other grounds and propose to grant relief.

BACKGROUND

4 In 2003 the proponent (by Amos & McDonald Surveyors) lodged with the council a development application for a proposed 11 lot subdivision of the Land. It would result in 10 rural-residential lots on the western side of the site ranging in size from 1.01 to 2.19 hectares, and one large rural residue lot. Access would be via a new internal access road. A substantial portion of the development footprint fell over existing small clearings and existing tracks.

5 The Land was zoned in part Rural 1(a2) and in part Rural 1(a1) Rural/Residential by the LEP, under which the proposed development was permissible with the council’s consent. Clause 11 of the LEP provided:

“The Council must not grant development consent if in the opinion of the Council the proposed development is inconsistent with any of the objectives of the zone in which it is intended to be carried out.”

6 Part of the Land lies outside an “indicative broken black line on the map” to the LEP, and hence required assessment under cl 13 of the LEP before consent could be granted.

7 The development application stated that the development would not have an impact on the environment of threatened species and did not require concurrence of any other state agency to carry out the development.

8 On 27 October 2003 the council wrote to the proponent stating the information it needed in order to determine the application, including a flora and fauna assessment report prepared in accordance with s 5A of the EPA Act by a suitably qualified person which listed the threatened species and identified any potential impacts such as clearing associated with the proposed development. It said that the report would be forwarded to the National Parks and Wildlife Service (NPWS) for comment.

9 In December 2003 the council notified residents of adjacent properties.

10 A notice was placed in a local newspaper in December 2003 advertising that the council was in receipt of an 11 lot rural residential subdivision development application for the Land. This was the only occasion on which the council advertised the development application.

11 On 4 February 2004, the NPWS wrote to the council to say:

"Given the heavily vegetated nature of the subject site, the flora and fauna assessment undertaken by Yarranbella Environment Services is considered to be inadequate. The report does not provide sufficient information for Nambucca Shire Council to make an informed decision regarding the likely significance of impacts on threatened species as a result of the habitat removal proposed."

12 On 16 April 2004 the council wrote to the proponent to say that it had been unable to determine the application as the required information and fees had not been submitted to verify the proposal. It notified the proponent that a revised flora and fauna assessment report was required as the NPWS had advised that the submitted report was inadequate.

13 In an assessment of the development application on 2 July 2004, a council officer recommended that the council refuse it for the reason, among others, that the development was not consistent with objectives for the relevant zone and had the potential to have detrimental impacts upon native vegetation and fauna.

14 On 7 July 2004 Mr Charlie Hannavy, the council’s Manager Planning and Assessment, wrote a file note recording his conversation with the proponent. On 8 July 2004 Mr Greg Meyers, the council’s Director Environment and Community Planning, wrote a file note recording his conversation with the proponent. These two file notes are relevant to ground 1 and are considered in detail below.

15 On 8 July 2004 the proponent provided the council with a revised flora and fauna assessment. On 12 July 2004 the council forwarded it to the Department of Environment and Conservation (DEC).

16 On the same day, the council wrote to the proponent stating that the notice of refusal had been withheld and the deadline for outstanding information further extended, and that the Department of Infrastructure, Planning and Natural Resources (DIPNR) required specified information.

17 On 6 August 2004 the NPWS wrote to the council to say: "Council should carefully consider whether a Species Impact Statement (SIS) is required, in accordance with Council’s obligations under Section 79C of the EP&A Act.”

18 On 23 August 2004 the council wrote to the proponent to say:

" ... [we] advise that the Department of Environment and Conservation (DEC) formerly National Parks and Wildlife Service, have responded negatively with regard to the amended Flora and Fauna Report.

19 The letter also said that, based on that advice, council was not in a position to adequately consider the application; suggested the proponent consider withdrawing it; and recommended that any re-submitted application should be accompanied by a species impact statement.

20 On 2 June 2005 a meeting of the council resolved that "the applicant be granted an extension of four months to address the outstanding issues involving the flora and fauna report and Aboriginal Cultural Heritage assessment."

First Amendment

21 In October 2005 the proponent lodged with the council an amended development application which reduced the number of subdivision lots from 11 to 9 and altered the subdivision layout (First Amendment).

22 Accompanying the First Amendment was a statement of environmental effects, an ecological impact assessment report dated September 2005 by Darkheart Eco-Consultancy (Darkheart) which included a new flora and fauna survey, and a koala habitat plan of management (KPoM) by Darkheart as required under State Environmental Planning Policy No 44 – Koala Habitat Protection (Koala SEPP). The Darkheart documents were authored by Mr Jason Berrigan who gave evidence in this proceeding. Darkheart noted that one adult female koala (a threatened species) was recorded on the site, direct habitat impacts will include the loss of about 400m² of two endangered ecological communities (EEC), and there were about two hectares of EEC on the site. Darkheart concluded that in a regional sense the loss of 400m²of EEC was not a significant area of known habitat and that, if the report’s recommendations were effectively implemented and statutory provisions enforced, the remaining EEC on the site should remain post development in a condition very similar to the current state.

23 The First Amendment was not re-advertised. In early September 2006 residents of adjacent properties were notified of the First Amendment. In September 2006 the council received public submissions regarding the First Amendment.

24 On 16 November 2005 the council provided DEC with the Darkheart ecological impact assessment report and KPoM.

25 On 28 November 2005 a letter from DEC to the council stated:

“DEC has conducted a preliminary review of the flora and fauna assessment prepared by Darkheart Eco-consultancy, in relation to the proposed subdivision. It is noted that the assessment implies that the development is unlikely to have a significant impact on threatened species, populations or ecological communities, or their habitats. Nonetheless, the decision as to whether or not the proposed development will or will not have a significant impact on threatened species, populations or ecological communities, or their habitats rests with Nambucca Shire Council, in accordance with Section 79C of the Environmental Planning and Assessment Act 1979 .

It is also noted that Darkheart Eco-consultancy has prepared a SEPP 44 – Koala Habitat Management Plan. This plan has been prepared due to the identification of core koala habitat within the subject site.

Council is reminded that, in accordance with Clause 15(b) of SEPP 44, in order to give effect to the aims of the Policy, Nambucca Shire Council should amend the Nambucca Local Environment Plan to include that area identified as core koala habitat within a 7 (Environment Protection) Zone.

26 The proposed development is on land which is a core koala habitat. Accordingly, before the council could consent, it had to be satisfied that there was a KPoM approved by the Director General of the Department of Planning: cll 9, 13(2) Koala SEPP.

27 On 20 September 2006 the council forwarded to the Department of Planning a copy of the KPoM for consideration for approval of the Director-General.

28 On 20 December 2006 the council wrote to the proponent stating:

“... the revised flora and fauna report raises further issues as to whether or not a Species Impact Statement will be required due to the identified impact on threatened species and critical habitat due to the development.”

29 On 26 March 2007 the Department of Planning wrote to the council to say:

“It is considered that the development as proposed will contribute to the current trend of koala population decline in NSW and that the aims and objectives of SEPP 44 have not been met. Given the acknowledged importance of the site to koalas in an already fragmented landscape, several issues would need to be addressed in detail in order for the Department to reconsider this proposal and associated KPoM.”

30 The letter also stated:

“The Department also notes that the site is of value to a range of other threatened species (including hollow-dependant fauna) and· endangered ecological communities on the site. This aspect of the proposed development is of additional concern to the Department. It is recommended that Council seek advice from the Department of Conservation regarding these issues.”

31 On 10 April 2007 the council wrote to the proponent to advise that the Department of Planning considered that the proposed measures to manage koala habitat were inadequate. The letter stated: “the extent of the proposed development may need to be reconsidered” and council was “not in a position to make a favourable determination of the proposed subdivision in its current layout”. The letter suggested that the proponent arrange a meeting to discuss the Department of Planning’s comments before “any further consideration or amendment of the development application”. It also noted that any referral to DEC “will be held in abeyance pending the outcome of the above suggested discussions”.

32 On 19 April 2007 the proponent wrote to the council to request such a meeting.

33 On 4 June 2007 the proponent wrote to the council to advise that there would be an application to "propose a community title development for the site".

34 On 19 November 2007 the council wrote to the proponent to advise that, although the application had been lodged with the council on 13 October 2003, it was unable to be determined as council had not received “any further details regarding your client's intention to submit an amended proposal for a community title development on the subject site”. The letter asked the proponent either to submit the required information or provide written notice of withdrawal of the application within 30 days.

Second Amendment

35 On 21 November 2007 the proponent wrote to the council stating:

“Please be advised that we will be in a position to lodge an amended community title development for the site within the next 3 weeks.

Can you please advise whether this new proposal will just replace the existing application or whether the existing application needs to be withdrawn and this lodged as a new development application.

36 On 4 December 2007 the council replied by letter stating:

“In accordance with previous discussions, your proposal for a community title subdivision will supersede your current proposed subdivision layout. As such, the existing application will not need to be withdrawn and no new fees will apply. However, the amended plans and any amended documentation in support of the proposed development will need to be re-notified and referred to the Department of Conservation and Climate Change for further consideration.

37 On 18 December 2007 the proponent lodged a printed form of “Development Application” with the council seeking approval for an eight lot “Community Title Rural Residential Subdivision” (Second Amendment). However, it bore the same DA number as the original development application in 2003. This amended proposal altered the layout of the subdivision which now comprised six (minimum one hectare) rural-residential lots, a 6.85 hectare community title lot and a residual lot of 55.7 hectares.

38 The documents accompanying the Second Amendment included new drawings, a new KPoM dated December 2007 by Darkheart authored by Mr Berrigan which took into account the requirements of the Department of Planning, a revised statement of environmental effects dated December 2007, and an undated neighbourhood management statement.

39 The Second Amendment was not re-advertised. In January 2008 the council sent letters to all adjoining landowners advising them of the Second Amendment and describing it as an “Amended Development Application”. The letter stated in part:

“Council has received an amended proposal for an 8 lot rural-residential community title subdivision…The original development application…was advertised and notified from 19 December 2003 until 19 January 2004. Your submission was received during that period and considered as part of the assessment process. However, the flora and fauna assessment submitted with the original application was considered to be inadequate.

40 On 11 January 2008 the council forwarded the revised KPoM to the Department of Planning for consideration for approval by the Director-General. It contained the following history of the progress of the development application:

“Council received Development Application No 2004/136 for an 11 lot rural-residential subdivision on the above land in October 2003. The flora and fauna assessment submitted with the original application was considered to be inadequate. The applicant subsequently submitted a revised flora and fauna assessment and a Koala Plan of Management (KPoM) for a revised 10 lot subdivision.

The revised 10 lot subdivision application was referred to the Department of Planning on 20 September 2006. The Department’s comments to Council, dated 26 March 2007 (your ref G06/0035), found the KPoM to lack clarity and to be deficient in relation to several matters which required further attention by the applicant.

In response to the Department’s comments, the applicant has reviewed his options and, in December 2007, submitted an amended proposal for an 8 lot rural-residential community title subdivision and a revised KPoM.

41 On 14 January 2008 a council officer’s assessment included the following:

“The original development application proposed an 11 lot rural-residential-subdivision which was referred to H&B on 27 October 2003. However, due to site constraints a community title subdivision has now been proposed as a more appropriate form of development. The proposed development will create 6 development lots of approximately 1 hectare, a community lot of 6.85 ha and a residual lot of 55.7 ha. Access will be via an internal access road linked to East West Road.”

42 On 20 May 2008 the Department of Planning wrote to the council to advise that approval had been given to the 2007 Darkheart KPoM conditional upon compensatory replanting of lost koala food trees at a ratio of 10:1 and upon preparation of an environmental management plan (EMP) to the satisfaction of the council:

“The KPoM gives a figure of twenty-three (23) feed trees to be removed around the dwelling sites (page 27). However, this total is likely to be far greater (given the likely requirement by the RFS to remove more trees for the additional road works and for the Asset Protection Zone (APZ) within the Community Title ‘koala habitat’ lot). The KPoM gives a compensatory replanting ratio of 3:1 – this is well below the Department’s accepted standard of 10:1. Accordingly, 230 koala feed trees should be replanted. In addition, the KPoM needs to be more specific regarding protection measures for retained vegetation on the subdivided lots. Under scrubbing of development lots outside the APZ should be prohibited (thus encouraging a continuing natural regeneration of those areas for future koala use). Building envelopes should be determined early and mapped within the KPoM.

Third Amendment

43 On 11 July 2008 the proponent amended the proposal by the deletion of one rural-residential lot (Third Amendment). The proposal now was for seven lots consisting of five rural-residential lots ranging from 1.04 to1.3 hectares, a community title lot of about 7.82 hectares which contained the internal road, and a large residual lot of about 56 hectares.

44 The Third Amendment was not re-advertised. Land owners of adjacent properties to the development were re-notified of the Third Amendment. By letters dated 18 August 2008, persons who had objected to the Second Amendment were notified that the Third Amendment was being reported to the council.

Development Consent

45 On 21 August 2008 the council resolved to determine the amended development application by granting consent “subject to conditions of consent attached to” the council report before the council and subject to a condition that a private internal road be provided as part of the community title.

46 Condition 1 provided that the development be implemented generally in accordance with the plan of subdivision, the Darkheart KPoM of December 2007, the Darkheart ecological assessment report of September 2005, and the neighbourhood management plan: see [22] and [38] above.

47 The council report, by the council’s Director Environment and Planning, noted that the determination was of the application lodged in October 2003. It said that only three submissions, which it annexed, were made on the “amended application”. It did not include any reference to or annex submissions made with respect to the original application and earlier amendments. The council report attached conditions on which it recommended approval should be given. The council report said that the Department of Planning’s requirement for an EMP which details the planting and regeneration program and uses a compensatory planting of koala food trees at a ratio of 10:1 rather than 3:1 (proposed by the proponent) “have been incorporated as conditions of consent”. In fact, the EMP requirements did not appear in the conditions attached to the council report although they appeared in the council’s later notice of determination.

48 On 28 August 2008 the council issued to the proponent a Notice of Determination by way of granting conditional consent.

49 The first ground of challenge to the validity of the development consent is that on or about 8 July 2004 the development application was refused actually or constructively, and that all else done thereafter was inconsistent with the refusal. The council says that there was no refusal and, in any case, the council officer who allegedly refused it had no authority to do so.

Refusal

50 On 7 July 2004 Mr Hannavy, the council’s Manager Planning and Assessment, wrote the following file note concerning his discussion with the proponent:

“I spoke to Ken today re message I left for him last week that DA was to be refused. He advised that he had been waiting for revised flora and fauna report from Wayne Brennan, since May but had still not received it.

I indicated that Council’s concern was with the significance of the vegetated area and that subdivision would involve substantial incursions into what could be an important corridor/habitat area.

I also advised Ken that I had held of [sic] on sending a letter of request for further information re: DIPNR Part 3A requirements, I had intended to have notice of refusal finished by now. I said the notice was on my desk ready to be signed and would probably be sent out today.

51 On 8 July 2004 Mr Meyers, the council’s Director Environment and Community Planning and Mr Hannavy’s superior, wrote the following file note concerning his discussion with the proponent:

“I attended a meeting with the applicant Mr Joseph and the Mayor regarding his DA.

I advised that I had infact [sic] signed a refusal Notice but had not yet sent the Notice as I had to change the date.

Mr Joseph produced a letter from Amos and McDonald to Council dated 11 May 2004 providing some outstanding information and advising that the Flora and Fauna report (revised) and an Aboriginal Cultural Heritage Assessment are currently being attended to and will be submitted as soon as possible.

Therefore as advice had been received that they were endeavoring [sic] to provide the information they have in fact complied with Council Policy for outstanding DA’s.

I have therefore conceded that the Notice of refusal will not be issued provided the outstanding Information is submitted shortly.

52 Attached to Mr Meyers’ file note is a notice of determination dated 2 July 2004 signed by him stating that the application had been refused for a number of reasons. Across the front of the notice there was handwritten, apparently by Mr Meyers, “Withheld see file note 8/7/04”. The notice of determination was not sent to the proponent but remained on the council file.

53 The applicant submits that:

(a) once Mr Meyers signed the notice, it was effective as a determination by refusal;
(b) the combination of Mr Meyers’ decision to refuse and communication of that decision to the applicant means that the council had validly exercised its power under s 80 of the EPA Act to determine the application by refusal;
(c) consequently, any further act with respect to the application was ultra vires.

54 The council submits that:

(a) sections 80 and 81 operate together such that execution of a determination by the council or its delegate is not the making of the determination in the absence of notification under s 81(1);
(b) Mr Hannavy and Mr Meyers only had delegated power to sign notices of determination but not to determine development applications;
(c) the council had power to grant the extension of time sought by the proponent on 8 July 2004 and defer making its final decision until the reports were received. That is what Mr Meyers did on 8 July 2004. The entirety of the conduct of the proponent and the council thereafter is consistent with the development application, as amended, remaining on foot.

55 Sections 80, 81 and 83 of the EPA Act are relevantly as follows:

“ 80 Determination

(1) General
A consent authority is to determine a development application by:
(a) granting consent to the application, either unconditionally or subject to conditions, or
(b) refusing consent to the application.

…

81 Post-determination notification

(2) If the consent authority is not the council, the consent authority must notify the council of its determination.
(3) In the case of a development application for consent to carry out designated development, the consent authority must also notify each person who made a submission under section 79 (5) by way of objection of the person’s rights to appeal against the determination and of the applicant’s rights to appeal against the determination.”

83 Date from which consent operates

(a) except as provided in paragraph (b)—the date that is endorsed on the notice given to the applicant in accordance with section 81 (1) of the determination of the development application or under section 82A (7)…”

56 For the purposes of s 81(1), cl 100 of the Environmental Planning and Assessment Regulation 2000 (EPA Regulation) prescribes much information that a notice of determination of a development application must contain, including the consent authority’s reasons for a refusal. Clause 102(1) mandates that a notice under s 81(1) must be sent to the applicant within 14 days of the date of the determination of the application. Clause 102(3) provides that failure to send within the 14 day period does not affect the validity of the notice or any development consent to which it relates. That provision validates a late notice of determination but does not dispense with the requirement to send the notice: Townsend v Evans Shire Council [2000] NSWLEC 163, 109 LGERA 336.

57 The statutory provisions show that:

(a) there is no effective determination of a development application until the prescribed statutory notice of determination is sent to the applicant: Hamod v Minister for Urban Affairs and Planning [2009] NSWLEC 24 at [15] (Lloyd J); Townsend v Evans Shire Council (2000) NSWLEC 163, 109 LGERA 336, (Lloyd J); Shanahan v Strathfield Municipal Council [1973] 2 NSWLR 740 at 744 (Street CJ in Eq); Ex parte Renouf [1924] 24 SR (NSW) 463 at 467 (Street ACJ, James J concurring); Panagopoulos v Willoughby City Council (1992) 78 LGERA 270 at 272-273 (Bignold J);
(b) a council can revoke determination of a development application before it is formally communicated to the applicant: Townsend at 341-342; Shanahan at 742-744; Renouf at 466-467. It may be open to argument whether the power to revoke continues until the applicant has acted on the faith of the approval after formal communication; Shanahan at 742.
(c) in contrast, it has been held that determination of an application to modify a development consent may be notified to the applicant orally because there are no statutory notice requirements in such a case: Panagopoulos .

58 The application of these principles is illustrated in Townsend. There the council resolved to grant consent to a development application. At the conclusion of the meeting the mayor in effect told the applicants, who were present at the meeting, that consent had been granted. A week later, the applicants contacted the council staff to obtain the notice of determination, but were told that it would not be available because a rescission notice was coming in. Subsequently the council rescinded the consent resolution and notified the applicants. It was held that the rescission notice was valid.

59 Under the statutory scheme, the sending of a statutory notice of determination of a development application to the proponent is essential. In the present case it was not sent to the proponent until 2008, after the amended application was determined by consent.

60 The high point of the applicant’s case on ground 1 is that on 8 July 2004 Mr Meyers told the proponent that he had signed a refusal notice but had not sent it as he had to change a date. The proponent immediately successfully dissuaded him from sending it by indicating that overdue information would soon be provided. The proponent and the council proceeded then and for years thereafter on the basis that the application had not been determined until 2008 when consent was granted.

61 I am inclined to think that Mr Meyers did not refuse the application by signing the notice of determination because it was still a draft that was not finally settled and because he communicated an intention that refusal depended on sending the notice to the proponent. However, assuming that he refused the application by signing the notice of determination, it was open to the council to rescind the refusal before it was formally notified in accordance with the statute. Mr Meyers did so, at the proponent’s instigation, moments after the alleged oral refusal.

62 On this basis, the first ground of challenge must be rejected.

Authority

63 I turn to the council’s contention that, in any case, Mr Meyers and Mr Hannavy (“for” whom Mr Meyers signed the notice of determination) had no authority to determine the development application, nor to sign the notice of determination, in the absence of a determination by the council or its delegate, the General Manager.

64 Mr Meyers signed the notice of determination next to the printed words “Director, Environment and Community Planning” and above the words “for C Hannavy, Manager Planning and Assessment”.

65 The authority issue turns on the construction of instruments of delegation. The earliest instrument of delegation, adopted in or about 1996, indicates in its heading that the council delegated certain functions to the General Manager who sub-delegated them to the Director Environmental Services - who, at the relevant time, was Mr Meyers. It does not record any sub-delegation to the Manager Planning and Assessment - who, at the relevant time, was Mr Hannavy. The 1996 instrument relevantly states:

“That in accordance with the provisions of Sections 377 and 381, Local Government Act 1993 and regulations thereunder, the following powers, authorities, duties and functions of Council be delegated to the General Manager.

a Environmental Planning and Assessment Act”.

66 The 1996 instrument does not refer to development applications, determination of development applications or refusal notices. Even if there were to be read into it a power to consider development applications, the word “consider” cannot be construed as “determine”. I conclude that this instrument did not empower Mr Meyers, let alone Mr Hannavy, to determine development applications or issue refusal notices.

67 If the 1997 instrument could be construed as a delegation of power to determine a development application by consenting to it (contrary to my opinion), there would be the further difficulty that the statutory power of determination is indivisible so that delegation of a power to consent without a power to refuse is invalid: Belmorgan Property Development Pty Ltd v GPT Re Ltd [2007] NSWCA 171, 153 LGERA 450.

68 The second delegation instrument, adopted in 2003, relevantly delegates the following limited authority to the General Manager:

“DELEGATION TO GENERAL MANAGER FOR REFUSAL

69 It does not record any sub-delegation. The applicant submits that the 1996 instrument sub-delegates the power in the 2003 instrument to Mr Meyers. I am unable to agree. Accordingly, the 2003 delegation instrument is irrelevant.

70 I conclude that Mr Meyers had no authority to refuse the development application.

71 Further, instruments of sub-delegation from the General Manager issued in 2002 delegated authority to “sign” notices of determination for development consent to the Director Environment and Community Planning (Mr Meyers at the relevant time) and the Manager Planning and Assessment (Mr Hannavy at the relevant time). These instruments did not empower them to determine development applications. Mr Meyers may have had authority to sign “for” Mr Hannavy. However, they only had power to sign if a determination had been made. As no determination had been made under s 80(1) by the council or its delegate, the General Manager, in my opinion neither Mr Meyers nor Mr Hannavy had power to sign the notice of determination.

72 For these reasons, ground 1 fails.

GROUND 2(a): SPECIES IMPACT STATEMENT

73 Ground 2(a) is that the development consent is invalid because the council did not have before it a species impact statement, as required by s 78A(8)(b) of the EPA Act.

74 The applicant contends that s 78A(8)(b) of the EPA Act applied because the development application was in respect of development that was likely to significantly affect the following threatened species or ecological communities:

(a) two endangered ecological communities ( EEC ): River-Flat Eucalypt Forest on Coastal Floodplains of the New South Wales North Coast, Sydney Basin and South East Corner Bioregions; and Subtropical Coastal Floodplain Forest of the New South Wales North Coast Bioregion; and
(b) a threatened species, the koala, or its habitat.

75 The applicant’s case is supported by the evidence of its expert ecologist, Dr Stephen Phillips, but is contrary to the evidence of the proponent’s expert ecologist, Mr Jason Berrigan, who prepared the 2005 and 2007 Darkheart KPoMs and the 2005 Darkheart ecological impact assessment: see [22] and [38] above. In closing submissions, the applicant abandoned a contention, based on Dr Phillips’ evidence, that a species impact statement was also required because of the development’s likely affect on a certain bat.

76 This contest is between the applicant and the proponent. Mindful of what it says is its proper role in the proceedings, the council confines its submissions to its powers and procedures and no longer pleads to, nor makes any submission in relation to, this ground: The Queen v Australian Broadcasting Tribunal; Ex parte Hardiman [1980] HCA 13, 144 CLR 13.

The legislative scheme

77 Section 78A(8)(b) provides:

“ 78A Application

…

Threatened Species Conservation Act

78 The reference in s 78A(8)(b) of the EPA Act to “development…that is…or is likely to significantly affect threatened species, populations or ecological communities, or their habitats” is a jurisdictional fact in the sense that if the court decides, on the evidence before it, that that was the situation, and if the development application was made without an accompanying species impact statement, then the power to grant development consent was not enlivened: Gedeon v Commissioner of the New South Wales Crime Commission [2008] HCA 43, 236 CLR 120 at [43];Timbarra Protection Coalition Inc v Ross Mining NL [1999] NSWCA 8, 46 NSWLR 55 at [34], [94]; Woolworths Ltd v Pallas Newco Pty Ltd [2004] NSWCA 422, 61 NSWLR 707 at [105], [188]; Corowa v Geographe Point Pty Ltd [2007] NSWLEC 121, 154 LGERA 117 at [35], [51] (Jagot J). In this sense, the Court is the judicial ecologist.

79 Section 4(1) of the EPA Act defines terms appearing in s 78A(8)(b) by reference to definitions in the Threatened Species Conservation Act 1995 (TSC Act). Section 4(1) of the TSCAct defines “threatened species, populations and ecological communities” to mean species, populations and ecological communities specified in Schedules 1, 1A and 2 of the TSC Act. “Habitat” means “an area or areas occupied, or periodically or occasionally occupied, by a species, population or ecological community and includes any biotic or abiotic component”. Schedules 1, 1A and 2 of the TSC Act categorise threatened species, populations and ecological communities as “endangered”, “critically endangered” or “vulnerable”. A threatened species, population or ecological community is eligible to be listed as “endangered” if, in the opinion of the Scientific Committee constituted under the TSC Act, it is facing a very high risk of extinction in New South Wales in the near future, as determined in accordance with criteria in the regulations: ss 10(3), 12(2) TSC Act. The objects of the TSC Act are stated in s 3 as follows:

80 Section 78A(8)(b) operates at all times between lodgement and determination of the development application. If the consequence of amending the application is to bring the development within or outside s 78A(8)(b), the section operates in its terms on and from the amendment. Any ameliorative measures proposed in the application as determined are to be taken into account in deciding that question: Corowa at [50], [56].

81 In the present case, the “development” of which s 78A(8)(b) speaks was for a subdivision into five rural-residential lots of a little over one hectare each and a community title lot of about 7 hectares, together with an access road.

82 In s 78A(8)(b), “likely” means “a real chance or possibility”, whereas “significantly” means “important”, “notable”, “weighty” or “more than ordinary”: Corowa at [52]; Plumb v Penrith City Council [2002] NSWLEC 223 at [22] (Pearlman J); B T Goldsmith Planning Services Pty Ltd v Blacktown City Council [2005] NSWLEC 210 at [59] (Pain J); Oshlack v Richmond River Council (1993) 82 LGERA 222 (Stein J).

83 In deciding whether the development is likely to significantly affect a threatened species or ecological community, it is mandatory to take into account the matters listed in s 5A of the EPA Act. However, the Court is not limited to those matters nor does a positive finding on any matter in s 5A require a finding that a species impact statement was required: Corowa at [52]; Plumb at [36] – [37]. In the present case, there is an issue as to whether the previous version of s 5A or the current version, which commenced on 31 October 2005, applies in the Court’s assessment of whether a species impact statement was required.

84 The previous s 5A, with its eight part test, was as follows:

“ 5A Significant effect on threatened species, populations or ecological communities, or their habitats

For the purposes of this Act and, in particular, in the administration of sections 78A, 79C (1) and 112, the following factors must be taken into account in deciding whether there is likely to be a significant effect on threatened species, populations or ecological communities, or their habitats:

(a) in the case of a threatened species, whether the life cycle of the species is likely to be disrupted such that a viable local population of the species is likely to be placed at risk of extinction,
(b) in the case of an endangered population, whether the life cycle of the species that constitutes the endangered population is likely to be disrupted such that the viability of the population is likely to be significantly compromised,
(c) in relation to the regional distribution of the habitat of a threatened species, population or ecological community, whether a significant area of known habitat is to be modified or removed,
(d) whether an area of known habitat is likely to become isolated from currently interconnecting or proximate areas of habitat for a threatened species, population or ecological community,
(e) whether critical habitat will be affected,
(f) whether a threatened species, population or ecological community, or their habitats, are adequately represented in conservation reserves (or other similar protected areas) in the region,
(g) whether the development or activity proposed is of a class of development or activity that is recognised as a threatening process,
(h) whether any threatened species, population or ecological community is at the limit of its known distribution.”

85 The current (substituted) s 5A, with its seven part test, provides:

“ 5A Significant effect on threatened species, populations or ecological communities, or their habitats

local

86 I have emphasised the word “regional” in the previous s 5A(c) and the word “local” in the current s 5A(2)(b) and (c) because they suggest a change to a more rigorous, local test.

The questions

87 The applicant and the proponent agree that the following questions arise in this case:

(a) does the current s 5A of the EPA Act , which came into force on 31 October 2005 apply, or does the previous s 5A apply?
(b) in assessing whether there was likely to be a significant effect on the EEC, what is the extent of the EEC on the development site?
(c) if the previous s 5A applies, what is the meaning of the term “known habitat” in s 5A(2)(c), particularly as applicable to an EEC?
(d) is there likely to be a significant effect on the EEC arising out of:

(i) clearing of native vegetation on the development site, and/or
(ii) a failure to include in the application a buffer between the development site and the EEC?

(e) is there likely to be a significant effect on a threatened species or population, being koalas, or their habitat, arising out of:

(i) the loss of koala food trees from the development; or

(ii) the lack of an effective ameliorative measure due to a failure to prohibit dogs from the residential lots?

Background

88 In 2005 Darkheart’s ecological impact assessment report and KPoM were provided to the council in support of the First Amendment to the development application. In 2007, following advice from the Department of Planning and the council, a new KPoM by Darkheart was provided to the council which took into account the requirements of the Department of Planning. It accompanied the Second Amendment, as did a neighbourhood management plan. The Department of Planning gave conditional approval to the 2007 KPoM. In 2008 the council granted conditional development consent. Condition 1 was that the 2007 development be implemented generally in accordance with Darkheart’s 2007 KPoM, Dearkheart’s 2005 ecological impact assessment report and the neighbourhood management plan: see [22], [38], [42] and [45] above.

89 A council report was before the council when it granted development consent: see [45] above. It included the following statement:

“The design and layout of the subdivision has been substantially amended from the initial proposal which consisted of an 11 lot torrens title subdivision accessed by a new public road.

90 On the five rural-residential lots, the dwellings and asset protection zones are to be centred in existing clearings only with clearing kept to the minimum. In total, dwelling envelopes and asset protection zones will affect approximately 1.78 hectares, much of which is already cleared. The asset protection zones have been configured conservatively using a large house footprint as the base for calculation, and hence may be reduced if a smaller house is erected.

91 The area of the approximately one hectare private lots (a total of 5.97 hectares) is to be kept as is (minus weeds). In addition, if any koala browse species are removed, they are to be replanted in currently cleared sections of the community title land with natural vegetation allowed to reform forest identical to adjacent areas as an offset.

92 The approximately 7.35 hectare community title land (excluding the 0.47 hectare access road reserve) is to perpetually remain in a natural condition (ie no underscrubbing, dams, internal fencing, stock keeping/grazing and so on is to be allowed) other than for a replacement boundary fence or fire tracks. This protected area includes the majority of the potential koala habitat including the highest concentration of preferred food species, and significant areas of major koala activity.

93 Permissible and prohibited land uses and activities on the subdivision will be specified and governed by a neighbourhood management agreement and title covenants.

94 The access road will be within a 10 metre wide road reserve (the total reserve is 0.47 hectares). Most of the road will be only four metres wide (on a six metre foundation) with four passing ways widening to six metres (on an eight metre foundation) for a distance of 20 metres per bay. The latter have been located to avoid any loss of trees. The access road follows the community track for almost all of its length, requiring minimum additional clearing.

Which version of s 5A (eight part test or seven part test) applies?

95 The first question is whether the previous s 5A, which contained an eight part test, or the current s 5A, which contains a seven part test, applies in the Court’s assessment of whether a species impact statement was required. The current s 5A was substituted on 31 October 2005, after the 2003 development application and the First Amendment but before the Second and Third Amendments and the 2008 development consent. There is substantial overlap in elements of the new seven part test and the old eight part test.

96 Which version of s 5A applies depends on the construction of cl 286C(2)(a) of the EPA Regulation, which provides:

“ 286C Transitional—species impact statements and determination of significant effect

…

Environmental Planning and Assessment Act

Threatened Species Conservation Amendment Act

(a) development that is the subject of a development application lodged under Part 4 of the Act before or within 6 months after the substitution of that section (but not so as to affect the application of that section as substituted in respect of any part or aspect of that development that is the subject of a subsequent development application lodged more than 6 months after the substitution of that section).”

97 The applicant submits that the current s 5A (seven part test) applies because:

EPA Regulation

98 The proponent submits that the previous s 5A (eight part test) applies because the Second Amendment in December 2007 was not a new development application but an amendment.

99 In my opinion, the phrase “a subsequent development application” in cl 286C(2)(a) cannot be stretched to include an amendment such as the Second Amendment. Consequently, in my opinion, the previous s 5A, with its eight part test, applies when determining whether a species impact statement was required.

The extent of the EEC

100 Dr Phillips, the applicant’s ecologist, and Mr Berrigan, the proponent’s ecologist, agreed that the two EECs on the development site can be regarded as a single ecological entity because the processes that threaten the integrity and long term viability of the remaining stands are identical.

101 Mr Berrigan’s conclusion in his 2005 ecological impact assessment was that the proposed development layout required the removal of 400m² of EEC for the required road crossing and that the EEC occupied a total of approximately two hectares in the drainage lines. Some areas of the EEC are in relatively good condition, while others show signs of degradation by weed invasion, erosion and sedimentation, and may have been regenerating since earlier land clearing and agricultural activity.

102 In these proceedings Mr Berrigan reduced that two hectares estimate to about 400m². Dr Phillips did not contest the reduced estimate. Nevertheless, the applicant contests it. Based on Mr Berrigan’s analysis of large scale soil landscape maps and his own site inspection where he excavated soil profile to undertake an assessment, Mr Berrigan concluded that his original estimate of two hectares of EEC on the site did not have the right soil type except for about 400m². He considered that his analysis was consistent with the decisions in Motorplex (Australia) Pty Ltd v Port Stevens Council [2007] NSWLEC 74 and Gales Holdings Pty Ltd v Tweed Shire Council [2008] NSWLEC 209 (Preston CJ). He was also influenced by his observation that non-indicator species dominate much of the area that he now excluded.

103 The maps, of themselves, are insufficient to support his opinion given their large scale and the fact that the Scientific Committee, constituted under the TSC Act, and the Department of Environment and Climate Change have advised that they should be used with caution.

104 The applicant submits that in cross examination Mr Berrigan disqualified himself as an expert in soil sampling and therefore his reduced EEC area cannot be accepted. It is true that at one point in cross examination Mr Berrigan said that he did not have the professional experience to qualify himself as a soil scientist. However, he also indicated that consideration of the maps coupled with his knowledge as an ecologist and as a scientist with academic qualifications in geology and soil science gave him enough information about soil testing to advise on the point. In my opinion, this is sufficient to qualify him to express an opinion on the point: s 79 Evidence Act 1995. I would add that in his 2005 report Mr Berrigan appeared to take soil type into account in arriving at his original two hectare estimate. It is difficult to then say that he cannot be heard to take soil type into account when later reducing that estimate. In the absence of competing evidence, I am prepared to accept Mr Berrigan’s revised estimate.

105 However, I do not think it matters in this case whether the EEC occupies about 400m² or two hectares of the site.

Habitat

106 The expert witnesses took differing approaches to the relevant “habitat” referred to in the previous s 5A(c) of the EPA Act and to the comparison it invited.

107 Section 4 of the TSC Act defines “region” as:

“region

108 These bioregions are defined in the Interim Biogeographic Regionalisation of Australia, of which 17 are in NSW. The relevant habitat is thus the area within the relevant bioregion occupied, periodically or occasionally occupied, by the threatened species, population or ecological community, as identified in the notice of final determination issued by the Scientific Committee under the TSC Act: Corowa at [58], s 4(1) TSC Act. The comparison which s 5A(c) invites is between that area – not the area of the bioregion itself – and the area occupied by the community which the development is to modify or remove. The comparison is both quantitative and qualitative.

109 In the present case, the relevant bioregion identified in the final notices of determination relating to the EEC is the NSW North Coast bioregion, which has an area of about 5.6 million hectares. However, the final notices record that the extent of the subject ecological community in that bioregion is likely to be less than 800 to 1400 km², being less than 30 per cent of their original extent. It is with the latter area that a comparison should be made under the former s 5A(c).

110 As I understand it, that was Dr Phillips’ approach (although he did not express it clearly) but Mr Berrigan’s comparison was with the area of the entire bioregion. However, Mr Berrigan also said in oral evidence that even on Dr Phillips’ comparison the area of EEC affected by the proposal was not significant. I agree.

111 The final notices of determination record that very few examples of the EEC remain unaffected by weeds. The causes of weed invasion include physical disturbance to the vegetation structure of the community, dumping of landfill rubbish and garden refuse, polluted runoff from urban and agricultural areas, construction of roads and other utilities, and grazing by domestic livestock.

Whether development likely to significantly affect the EEC or its habitat

112 The statutory test is not whether the development is likely to impact to any extent on threatened species, populations or ecological communities, or their habitats. It is whether the development is likely to “significantly affect” them: Corowa at [81].

113 Mr Berrigan stated in his 2005 Darkheart ecological impact assessment report that the development will result in the loss of 400m²of EEC for the required road crossing and that there were about two hectares of EEC on the site along the drainage lines. He concluded that the loss of 400m² of EEC, in a regional sense, was not a significant area of known habitat; and that, provided recommendations in his report were implemented and legislation enforced, the remaining EECs on the site should be retained post development in a condition very similar to their current state. As discussed earlier, in these proceedings he reduced his two hectare estimate to about 400m², which I am prepared to accept, but I do not think it matters which estimate is accepted.

114 Dr Phillips agreed that the loss of 400m² is regionally insignificant but disagreed that the remaining EECs on the site will be retained post development in a condition very similar to their current state because there was no provision for a buffer.

115 The debate between the experts in relation to the EEC focussed on the previous s 5A(c) of the EPA Act: “in relation to the regional distribution of the habitat of a threatened species, population or ecological community, whether a significant area of known habitat is to be modified or removed”. The other factors in s 5A, in my view, are either irrelevant or not indicative of a likely significant affect on the EEC or its habitat.

116 The concept of “significant” in s 5A(c) is relative, quantitatively and qualitatively, to the regional distribution of the EEC: Corowa at [73] per Jagot J; Plumb at [41] per Pearlman J.

117 These cases turned on their facts. In Corowa it was held that 9,000m² of a community was not a “significant area” of known habitat in the context of its distribution throughout the North Coast bioregion (an area of about 5.6 million hectares) and its degraded condition: at [73]. In Plumb it was held that the removal of up to 7 hectares of a threatened species, Cumberland Plain Woodland, would be insignificant compared with the area of that species across the relevant region, the Cumberland Plain: at [44]. A different conclusion was reached on the facts in BT Goldsmith Planning Services Pty Limited v Blacktown City Council [2005] NSWLEC 210 at [73] where uncertainty in the evidence as to the extent of the EEC led Pain J to invoke the precautionary principle, which is one of the principles of ecologically sustainable development referred to in the objects of the TSC Act.

118 In the present case 400m² of EEC will be lost and there is a debate as to the potential impact on the balance of, at most, about two hectares of EEC.

119 The experts’ disagreement primarily related to whether or not, by virtue of the ameliorative measures proposed, the integrity of the remaining EEC will be sustainable over the medium to long term following development consent.

120 Dr Phillips considered that if the ameliorative measures did not “guarantee” sustainability, then a significant impact will result from the development. I do not accept his “guarantee” criterion. It is higher than, and distracts attention from, the s 78A(8)(b) criterion as to whether the development is “likely to significantly affect” threatened species, populations or ecological communities notwithstanding the proposed ameliorative measures.

121 Dr Phillips considered that to assist coastal floodplain EECs to maintain the essential ecological processes for which they are responsible (water quality, flood mitigation and biodiversity support), it is necessary to effectively buffer them against adverse impacts such as clearing, fragmentation, degradation, landfills and earthworks associated with urban development, pollution from urban and agricultural runoff, and weed invasion.

122 Dr Phillips disagreed with Mr Berrigan’s conclusion that the EEC will be retained post development in a condition very similar to its current state because, in his opinion, the lack of provision for an ecological buffer to this EEC remnant significantly compromises its longer term ecological viability and ability to survive as a functioning ecosystem. That, he said, was because (a) tree removal for the purpose of creating building envelopes and associated asset protection zone requirements is to be undertaken; (b) underscrubbing of development lots by residents in order to increase general utility of their land will occur; and (c) as a direct consequence of (a) and (b) there will be an increase in nutrient and sediment loads due to increased surface runoff, the keeping of domestic livestock and effluent. Dr Phillips recognised that these impacts will not necessarily bring about the localised extinction of the EEC, but in his opinion they have the potential to significantly diminish the associated ecological processes that are a key component of the ecosystem function that the EEC currently provides, and hence should be minimised or avoided if possible. In short, Dr Phillips has little faith in the ability of the proffered ameliorative measures to achieve their stated aims of protecting the long term integrity of the EEC. Consequently, he considered that a 35 metre wide vegetated buffer should be established.

123 Mr Berrigan considered, as did the Department of Planning and the council, that the measures provided in his 2005 assessment and adopted in consent conditions are practical and enforceable and thus can ensure that the development does not result in impacts that would negate the ecological sustainability of the site’s habitats. He noted that enforcement of consent conditions is a characteristic of all development approvals. He considered that a buffer is not essential for this proposal due to:

124 In my view, Mr Berrigan’s assessment is persuasive and should be accepted. I accept that a buffer is unnecessary for the reasons he gives.

125 In terms of s 5A(c), I am satisfied on the evidence, in relation to the regional distribution of the EEC, that only an insignificant area of its known habitat is to be modified or removed.

126 Taking all relevant factors into account, I am satisfied on the evidence that the development is not likely to significantly affect the EEC or its habitat. Accordingly, s 78A(8)(b) did not require the development application to be accompanied by a species impact statement on account of the effect on the EEC or its habitat.

Whether likely to significantly affect the koala?

127 The next issue is whether the development is likely to significantly affect a threatened species, the koala, or its habitat by reason of:

128 The 13.57 hectare development site supports an area of “core koala habitat”, which is defined in cl 4 of the Koala SEPP as “an area of land with a resident population of koalas, evidenced by attributes such as breeding females (that is, females with young) and recent sightings of and historical records of a population”. Before the council could grant development consent, if it was satisfied it was a core koala habitat, there had to be a plan of management prepared in accordance with the Koala SEPP and the council determination could not be inconsistent with the plan of management: cl 9. Clause 3 states the aims of the Koala SEPP:

“ 3 Aims, objectives etc

129 The Land forms only a small part of the home range of one female koala, with potential intermittent, seasonal presence of other koalas most likely being that of dispersing sub-adults or breeding males. This was evidenced by the sighting only once of a female koala during the three weeks of Darkheart’s survey of the development site in 2005 and failure of previous surveys by others to detect any individual koalas. The koala high use was at opposite edges of the Land with generally low use, with some medium use, recorded on some other areas of the Land. A single koala’s home range, commonly occupied throughout its life, varies from a hectare to hundreds of hectares according to (among other things) the habitat. Mr Berrigan concluded, justifiably, that the local population is obviously not dependent on the site.

130 Loss of habitat (delivered by preferred food trees) and attacks by domestic dogs are two of the most important processes threatening the viability of free-ranging koala populations.

131 Some 3-23 koala food trees, out of hundreds if not thousands on the whole Land, are to be removed. They are not currently used by koalas and are required to be replaced at a ratio of 10:1. Domestic dogs are to be permitted on the five residential lots subject to ameliorative measures. The vast majority of dog attacks on koalas are by breeds that weigh more than 10 kilograms, which are to be prohibited.

132 Many of the ameliorative measures are provided for through condition 1 of the development consent which required the development to be implemented generally in accordance with Darkheart’s 2007 KPoM, and 2005 ecological impact assessment report and the neighbourhood management plan. These documents include ameliorative measures relevant to the koala.

133 Ameliorative measures in the neighbourhood management plan include the following:

(a) domestic dogs must be confined to the building envelopes in a koala-proof fenced enclosure or house yard;
(b) any domestic dog must be sterilised;
(c) no domestic dog shall be permitted to roam and must be restrained by a competent person;
(d) domestic dogs must not be allowed to come into contact or be found threatening a koala;
(e) any dog which does not belong to a resident must be reported to council rangers for removal;
(f) a domestic dog must be a companion dog weighing less than 10 kilograms;
(g) no fencing shall be allowed which is not constructed of koala permeable materials;
(h) any development of any lot must be carried out in a manner which does not pose a threat to koalas;
(i) all owners and occupiers of lots must be made aware of their responsibilities to ensure minimal threats to koalas and of the policies adopted for koala safety and protection;
(j) no burning off shall be permitted without first carrying out a search to ensure that no koalas are present or, if present, they are to be removed from the area.
(k) no clearing of any native vegetation shall be permitted on any lot for the purposes of pasture improvement, construction of drains or primary production activities;
(l) native vegetation may be removed in accordance with the Native Vegetation Act 2003 from the neighbourhood lot only for the purpose of construction of boundary fences between the neighbourhood lot and adjoining privately owned properties.

134 Other ameliorative measures proposed in Darkheart’s 2007 KPoM included the following:

135 The environmental management plan, which is required as a condition of consent (see ground 2(b) below), has to be prepared by a suitably qualified environmental consultant approved by the council, and has to include a comprehensive planting and vegetation program that details:

“ Design Changes: Amended plans required

The design of the development is to be modified as set out in the following table. Amended plans and specifications incorporating the following design amendments must be incorporated in the plans and specifications submitted with the application for a Construction Certificate:

Design Amendment	Reason for Amendment
Survey plan confirming that building envelopes for each lot are located wholly within existing cleared areas.	To ensure vegetation clearing is minimised in the provision of building envelopes and asset protection zones.”

194 The plans, which were the subject of the development consent, contained a note that the areas and dimensions were subject to final survey. The council report addressed the matter of building envelopes.

195 The issue is whether the council had power to impose condition 2 under s 80A of the EPA Act. The applicant submits that the answer is in the negative. I disagree. In my opinion, the council had power to impose this condition under s 80A(2) and (4) of the EPA Act, which are set out at [165] above. As regards s 80A(4), the right hand side of the table in condition 2 identified the express outcome or objectives that this aspect of the development must achieve. The left hand side of the table identified clear criteria against which achievement of the outcome or objective must be assessed.

196 The applicant cites Weal v Bathurst City Council [2000] NSWCA 88, 111 LGERA 181 at [96], [97] and Cameron v Nambucca Shire Council (1997) 95 LGERA 268 at 274 – 275 (Talbot J) where it was held that there had been no proper consideration of mandatory relevant matters of assessment. The failure could not be overcome by imposing a condition which deferred consideration. That is not the issue under ground 4, which is concerned with power.

197 For these reasons, I do not accept ground 4.

GROUND 5: ADVERTISING

198 The fifth ground of challenge to the validity of the development consent is that the development application to which consent was eventually granted was never advertised as required by s 79A(2) of the EPA Act.

199 This ground is bedevilled by consideration of provisions of legislation and development control plans whose content and relationship are generally unclear. They would benefit from the attention of a skilled draftsperson.

200 The importance of advertising and other notification requirements is clear from the object of the EPA Act “to provide increased opportunity for public involvement and participation in environmental planning and assessment”: s 5(c).

201 In a number of cases a development consent has been held to be void where there has been a failure to properly comply with advertising or notification requirements: see Boral Resources (Country) Pty Ltd v Clarence Valley Council [2009] NSWLEC 81 and the cases cited at [40]; and Boral Resources (Country) Pty Ltd v Clarence Valley Council (No 2) [2009] NSWLEC 133 and the cases cited at [18].

Background

202 The development application was lodged in 2003 and advertised once in a local newspaper, in December 2003. The advertisement described the proposal as an eleven lot subdivision resulting in the creation of ten rural-residential lots on the western side of the land ranging in size from 1.01 hectares to 2.19 hectares, and one rural residual lot. The advertisement stated where and when the development application and supporting documents could be inspected, and that written submissions or objections should be lodged by 19 January 2004.

203 The development application was thrice amended, in 2005, 2007 and 2008: see [21], [37] and [43] above. None of the amendments were advertised.

204 The development application was amended in 2007 by the Second Amendment to an eight lot community title rural residential subdivision, in an altered layout, comprising six rural-residential lots, a community title lot and a large residual lot. The proponent had earlier written to the council asking if a new development application was required. The council replied indicating that an amendment to the existing application was sufficient: see [35] – [36] above. A form of development application was then lodged by the proponent but it had the same DA number as the existing development application and was evidently intended to be an amendment: see [37] above.

205 Substantial new documentation was provided with the Second Amendment including new plans, a koala habitat management plan, a statement of environmental effects and a neighbourhood management statement. As the Second Amendment was not advertised, the community was not invited to inspect and comment on it and the accompanying documents.

206 Following the Third amendment, the development consent in December 2008 was for a seven lot subdivision comprising five rural-residential lots ranging from 1.04 to 1.3 hectares, a community title lot of over seven hectares and a large residual lot.

207 The evidence of the President of the Valla Coastal Protection Group, which I accept, was that he did not recall seeing the advertisement for the original development application, but that as at December 2008 if he had seen an advertisement about the proposed residential subdivision which stated that submissions could be made to the council, he would have written a submission.

208 In December 2007, a council officer, Arthur Tsembis, sent an email to his superior council officer, Greg Meyers, with a copy to a third council officer, Ben Oliver. It proposed a meeting between the council officers and stated: “We also need to decide if we should advertise the amended application and/or notify adjoining owners. I suggest that we do both and also notify these people to put in submissions”. Mr Meyers’ email reply was “Yes to the meeting and also the proposed re-notifications”.

EPA Act

209 Section 79A of the EPA Act provides:

“ 79A Public participation—advertised development and other notifiable development

210 Section 79A distinguishes between “advertised development” and “specified development”. “Specified development“ is not defined. “Advertised development” is defined in s 4 as follows:

advertised development

211 Sections 79A and 4 direct attention to any relevant development control plans. Two advertising development control plans applied at different times during the life of this development application:

Nambucca Development Control Plan No 12 – Advertising Development 2000

2000 DCP

Nambucca Development Control Plan No 12 – Notification and Advertising 2004

2004 DCP

212 Section 79A(1) applies to “advertised development” which, as defined in s 4, is development that is “identified” in (among other things) the regulations or a development control plan. “Advertised development” as so “identified” must be different from “specified development” where a development control plan “provides” for advertising or notification because the latter is expressly covered by s 79A(2).

213 Under s 79A(1), “notice” – which I take to include notice by way of advertising – of “advertised development” must be given in accordance with (among other things) the regulations and any relevant development control plan. In the event of any inconsistency between the regulations and any relevant development control plan, presumably the regulations would prevail. As discussed below, the regulations provide for advertising.

214 Section 79A(2) provides that an application for “specified development” must be advertised in accordance with any provisions of a development control plan if the development control plan provides for advertising. In contrast to s 79A(1), the regulations appear to be irrelevant under s 79A(2).

EPA Regulation

215 Clause 5 of the EPA Regulation is titled “What is advertised development?” Clause 5(1) says that “for the purposes of section 4(1) of the Act, the following types of development (not being designated development) are identified as “advertised development”. Four types of development are then listed, none of which is the subject type of development. Clause 6(2) says that “for the purposes of this Regulation”, three other types of development are referred to in the Regulation as “other advertised development”, including “any development that is identified as advertised development in a development control plan”. The latter specific type of development is, I note, also “advertised development” as defined in s 4 of the EPA Act and thus covered by s 79A(1).

216 Division 7 (cll 86-91) of the EPA Regulation is titled “Public participation – other advertised development” and applies to “other advertised development”: cl 86. Clause 87 includes an advertising requirement for other advertised development:

“ 87 How must a development application be publicly notified?

217 Clause 90 of the EPA Regulation prescribes the circumstances in which the consent authority may decide to dispense with (among other things) advertising of an amended development application in compliance with Division 7:

“ 90 Circumstances in which notice requirements may be dispensed with

amended or substituted

the consent authority has complied with this Division in relation to the original application, and

the consent authority is of the opinion that the amended, substituted or later application differs only in minor respects from the original application

(2) The consent authority may decide to dispense with further compliance with this Division in relation to a replacement application and, in that event, compliance with this Division in relation to the original application is taken to be compliance in relation to the replacement application.
(3) The consent authority must give written notice to the applicant of its decision under this clause at or before the time notice of the determination of the replacement application is given under section 81 of the Act.”

2000 DCP

218 Paragraph 6 of the 2000 DCP was headed “Development to which this plan applies”. Paragraph 6.1 was headed “Other Advertised Development” and para 6.2 was headed “Advertised Development”. Paragraphs 6.1 and 6.2 each commenced with the words “Advertised Development is” and then listed various types of development. The paragraph 6.1 list included “subdivision, where in excess of two additional allotments will be created (excludes residue allotment)”. That describes the subject development application. Given the opening words of para 6.1 and para 6.2, in my view they both identified the development they listed as “advertised development” within the definition of “advertised development” in s 4 of the EPA Act. In addition, the subject type of development identified in cl 6.1 was “other advertised development” within the definition of “other advertised development” in cl 5(2) of the EPA Regulation.

219 The 2000 DCP cl 9 prescribed the circumstances in which the council may dispense with advertising of an amended or substituted development application:

“ 9 CIRCUMSTANCES IN WHICH COUNCIL MAY DISPENSE WITH ADVERTISING AND/OR NOTIFICATION

Council may decide to dispense with advertising and/or notification in the following circumstances:

Where Council determines that an application for development consent will have no impact upon the amenity of adjoining land; or
Where a development application has been publicly advertised or notified in accordance with this Plan, and the application is amended or substituted in response to submissions received; or
Where a development application has been publicly advertised or notified in accordance with this Plan, and the application is amended or substituted in response to Council’s assessment; or
Where a development application has been publicly advertised or notified in accordance with this Plan, is withdrawn and later resubmitted in the same or similar form; and
Council is of the opinion that the amended, substituted or resubmitted application differs only in minor respects from the original and will have no greater environmental impact than that originally submitted .

In all other circumstances the development application must be notified/advertised or renotified/readvertised in accordance with the provisions of this Plan.

2004 DCP

220 The 2004 DCP commenced on 15 March 2004 and replaced the 2000 DCP. Paragraph 1.4 of the 2004 DCP states that the plan applies to all development in the Nambucca Shire with some exceptions, which are irrelevant in the present case. Paragraph 3 contains the following advertising provisions:

“ 3 ADVERTISING

3.1 Development to be Advertised
Council will advertise applications for the developments listed in Schedule 1.

3.2 Advertising and Submissions
Council shall publish a notice of all applications for advertised development in a local newspaper, in accordance with Section 79A of the Act and clause 65 of the Environmental Planning and Assessment Regulation 2000. The notice shall indicate that the application is to be publicly exhibited and submissions accepted for a period of not less than 21 days.

Council shall acknowledge, in writing, receipt of any submission. Any submissions, received during the advertising period, are to be considered by Council prior to determining any development application. Council may, solely at its discretion, consider submissions received after the end of the advertising period.

3.3 Notification of Advertised Development
Advertised development is to be notified to adjoining landowners in accordance with Clause 2 of this Plan, with submissions being accepted for 21 days. Where major development is involved, Council may, at its discretion, extend the advertising period to 28 days, where significant environmental impacts are anticipated. Council shall also extend the advertising period to 28 days for major subdivisions (20 or more allotments) and multi-dwelling housing (more than 20 dwellings or greater than 3 storeys in height).”

221 The reference in para 3.2 to cl 65 of the EPA Regulation is an error because cl 65 did not relate to advertising. The explanation for the error may lie in the fact that cl 65 of the earlier EPA Regulation 1994 contained an advertising provision. The reference was probably intended to be to cl 87 of the EPA Regulation.

222 Paragraph 3.1 of the 2004 DCP required the council to advertise applications for the developments listed in Schedule 1. The developments listed in Schedule 1, which is titled “development to be advertised”, includes: “subdivision, where three or more additional allotments will be created”. That describes the subject amended development application.

223 The 2004 DCP contains no dispensation provision.

Submissions

224 The applicant submits that:

225 The respondents submit that:

EPA Regulation

Discussion

226 The original development application was advertised in 2003. It was amended in 2005, 2007 and 2008. The amended development application was not advertised.

227 The 2004 DCP applied to the exclusion of the 2000 DCP from 15 March 2004. Therefore only the 2004 DCP was capable of applying to amendments to the subject development application.

228 The 2004 DCP identifies the subject type of development as advertised development. Paragraphs 3.2 and 3.3 prescribe how applications for “advertised development” are to be advertised and how “advertised development” is to be notified to adjoining landowners. Given that they appear in the same paragraph as para 3.1, I think they identify “advertised development” as development referred to in para 3.1, which includes the subject type of development.

229 Therefore, the subject development is:

EPA Act

EPA Regulatio

n

230 Therefore,

EPA Act

EPA Regulation

231 Clause 87 of the EPA Regulation required the development application to be advertised in a local newspaper. Construed in light of cl 90, cl 87 required the advertising of an amended development application. Paragraph 3 of the 2004 DCP prescribed how it was to be advertised.

232 Clause 90 of the EPA Regulation empowered the council to dispense with advertising the amended development application if the council was of the opinion that it differed only in minor respects from the original application.

233 On the evidence, as analysed below, I am satisfied that the council did not form that opinion.

234 The onus rests on the applicant as the challenger of the development consent to establish that the council did not form the opinion required by the dispensation provision. In GPT Ltd v Belmorgan Developments Pty Ltd [2008] NSWCA 256, 72 NSWLR 647 at [83] per Basten JA (Bell JA and Young CJ in Eq concurring) held that:

“a party challenging the validity of an exercise of statutory authority must demonstrate, by appropriate evidence, some basis for a finding of invalidity. Furthermore, that party must affirmatively satisfy the Court that there has, for example, been a failure to comply with some necessary precondition to the exercise of the power.”

235 The applicant can discharge the onus by reference to documentary evidence if it is sufficient to support the inference that the council did not form the opinion: Caroona Coal Action Group Inc v Coal Mines Australia Pty Ltd (No 2) [2010] NSWLEC 1 at [69] (Preston CJ). Judicial mechanisms including interrogatories and directions for statement of reasons are available under r 4.2 of the Land and Environment Court Rules 2007: Austral Monsoon Industries Pty Ltd v Pittwater Council [2009] NSWCA 154, 166 LGERA 436 at [99] per Spigelman CJ (McColl and Handley JJA concurring); Caroona at [70].

236 The relevant evidence comprises two emails between council officers in December 2007. A council officer, Arthur Tsembis, sent an email to another council officer, his superior Greg Meyers, stating: “we also need to decide if we should advertise the amended application and/or notify adjoining owners. I suggest that we do both and also notify these people to put in submissions”. Mr Meyers’ email response was “yes to the meeting and also the proposed re-notifications”. If (as the respondents suggest) Mr Meyers’ response is to be understood as including “no to advertising”, it is odd, to say the least, that he did not say so since Mr Tsembis suggested there should be advertising and in effect sought Mr Meyers’ response to that suggestion. Given the context, I am inclined to read Mr Meyers’ word “re-notifications” as including notification by way of advertising of the amended application. In fact, there was no advertising of the amended application. Possibly, that was an oversight.

237 However, assuming that Mr Meyers’ email should be understood as evidencing a decision not to advertise, the emails expose the council officers’ mental state concerning dispensation yet are silent as to the required opinion that was an essential prerequisite to the dispensation power.

238 Clause 90(a) of the EPA Regulation and cl 9 of the 2000 DCP tie together the power to dispense with advertising and the power to dispense with notice to adjoining owners in the sense that both are conditional upon the council forming the opinion that the amendments differ only in minor respects from the original application. It is clear that Mr Meyers decided that the adjoining owners should be notified. Prima facie, that suggests he did not form the opinion that the amendments differed only in minor respects from the original application. That is understandable given the nature of the amendments and the substantial supporting documentation: see [204] – [205] above. Absent the required opinion, there was no power to dispense with advertising. In the absence of any other evidence (including from the council officers), I infer that the council probably did not form the required opinion.

239 Accordingly, I uphold ground 5.

OTHER CONSIDERATIONS

240 The respondents ask rhetorically and briefly, with specific reference only to the council’s failure to consider the matters listed in cl 13 of the LEP as required by s 79C of the EPA Act (ground 3 above), whether it is the legislative intention that non-compliance with the legislation should result in invalidity of the development consent: Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28, 194 CLR 355. In my opinion, that is the legislative intention in relation to the non-compliance that I have found. Public advertising and consideration of mandatory, relevant matters are fundamental to the operation of the EPA Act.

241 It is the duty of the Court to consider making an order under s 25B of the Land and Environment Court Act 1979 instead of declaring that a development consent is invalid: s 25E. Section 25B provides:

“ 25B Orders for conditional validity of development consents

242 There is no submission that an order should be made under s 25B and I do not think that it should be made. Relevant considerations in relation to s 25B were canvassed in Aldous v Greater Taree City Council [2009] NSWLEC 17, 167 LGERA 13 at [97] – [100] by myself; and in Boral Resources (Country) Pty Ltd v Clarence Valley Council (No 2) [2009] NSWLEC 133 by Pain J. This Court has generally found it inappropriate to make a s 25B order in cases of failure to consider a mandatory relevant matter under s 79C of the EPA Act: Aldous at [100] and the cases there cited. In Boral Pain J declined to make a s 25B order where there had been a failure to advertise a development application in accordance with a development control plan.

243 There is no submission that relief should be declined in the general discretion of the Court.

COSTS

244 The applicant has succeeded in the action. Prima facie, costs should follow the event but there should be some reduction in the costs awarded to the applicant to reflect its failure on a number of discrete issues. On a broad approach, I propose that the applicant should have 60 per cent of its costs.

245 The orders I propose are as follows:

246 The orders will be as I have proposed unless by 4 pm on 22 March 2010 a party delivers competing short minutes of proposed orders to me. The exhibits may be returned.

Citations

Nambucca Valley Conservation Association v Nambucca Shire Council [2010] NSWLEC 38

Most Recent Citation

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Statutory Material Cited

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Townsend v Evans Shire Council [2000] NSWLEC 163

Belmorgan Property Development Pty Ltd v GPT Re Ltd [2007] NSWCA 171

R v Australian Broadcasting Tribunal; Ex Parte Hardiman [1980] HCA 13

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CITATION:	Nambucca Valley Conservation Association v Nambucca Shire Council [2010] NSWLEC 38
PARTIES:	APPLICANT: Nambucca Valley Conservation Association Inc. FIRST RESPONDENT: Nambucca Shire Council SECOND RESPONDENT: Paul Joseph
FILE NUMBER(S):	41213 of 2008
CORAM:	Biscoe J
KEY ISSUES:	JUDICIAL REVIEW :- validity of development consent for rural-residential subdivision – whether council refused consent or, if so, whether council officer had authority to refuse – whether species impact statement required – jurisdictional fact whether development likely to significantly affect threatened species, populations or ecological communities – whether environmental management plan or draft condition requiring same had to be before council – whether council failed to consider mandatory relevant considerations – whether council impermissibly deferred matters for later assessment – whether amended development application should have been advertised – whether legislative intention that non-compliance with legislation should result in invalidity – whether instead of declaration or determination of invalidity an order should be made under s 25B Land and Environment Court Act 1979
LEGISLATION CITED:	Evidence Act 1995, s 79 Environmental Planning and Assessment Act 1979, ss 5A, 78A(8)(b), 79A, 79C, 80, 80A, 81 Environmental Planning and Assessment Regulation 2000, cll 5, 86, 87, 88, 89, 90, 91, 286C(2)(a) Land and Environment Court Act 1979, s 25B Land and Environment Court Rules 2007, r 4.2 Nambucca Development Control Plan No 12 – Advertising Development 2000 Nambucca Development Control Plan No 12 – Notification and Advertising 2004 Nambucca Local Environmental Plan 1995 Native Vegetation Act 2003 State Environmental Planning Policy No 44 – Koala Habitat Protection Threatened Species Conservation Act 1995
CASES CITED:	Aldous v Greater Taree City Council [2009] NSWLEC 17, 167 LGERA 13 Austral Monsoon Industries Pty Ltd v Pittwater Council [2009] NSWCA 154, 166 LGERA 436 Belmorgan Property Development Pty Ltd v GPT Re Ltd [2007] NSWCA 171, 153 LGERA 450 Boral Resources (Country) Pty Ltd v Clarence Valley Council [2009] NSWLEC 81 Boral Resources (Country) Pty Ltd v Clarence Valley Council (No 2) [2009] NSWLEC 133 B T Goldsmith Planning Services Pty Ltd v Blacktown City Council [2005] NSWLEC 210 Cameron v Nambucca Shire Council (1997) 95 LGERA 268 Caroona Coal Action Group Inc v Coal Mines Australia Pty Ltd (No 2) [2010] NSWLEC 1 Castle Constructions Pty Ltd v North Sydney Council [2008] NSWLEC 137 Corowa v Geographe Point Pty Ltd [2007] NSWLEC 121, 154 LGERA 117 Currey v Sutherland Shire Council (1998) 100 LGERA 365 Ex parte Renouf [1924] 24 SR (NSW) 463 Gales Holdings Pty Ltd v Tweed Shire Council [2008] NSWLEC 209 Gedeon v Commissioner of the New South Wales Crime Commission [2008] HCA 43, 236 CLR 120 GPT Ltd v Belmorgan Developments Pty Ltd [2008] NSWCA 256, 72 NSWLR 647 Gunning Sustainable Development Association Inc v Upper Lachlan Council [2005] NSWLEC 23, 138 LGERA 281 Hamod v Minister for Urban Affairs and Planning [2009] NSWLEC 24 House of Peace Pty Ltd v Bankstown City Council [2000] NSWCA 44, 48 NSWLR 498 Manly Council v Hortis [2001] NSWCA 81, 113 LGERA 321 Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 Motorplex (Australia) Pty Ltd v Port Stevens Council [2007] NSWLEC 74 Neighbourhood Association DP 285249 v Watson [2008] NSWSC 876, 162 LGERA 322 Oshlack v Richmond River Council (1993) 82 LGERA 222 Panagopoulos v Willoughby City Council (1992) 78 LGERA 270 Plumb v Penrith City Council [2002] NSWLEC 223 Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28, 194 CLR 355 Pselletes v Randwick City Council [2009] NSWCA 262, 168 LGERA 59 Schroders Australia Property Management Ltd v Shoalhaven City Council [2001] NSWCA 74 Shanahan v Strathfield Municipal Council [1973] 2 NSWLR 740 The Queen v Australian Broadcasting Tribunal; Ex parte Hardiman [1980] HCA 13, 144 CLR 13 Timbarra Protection Coalition Inc v Ross Mining NL [1999] NSWCA 8, 46 NSWLR 55 Townsend v Evans Shire Council [2000] NSWLEC 163, 109 LGERA 336 Weal v Bathurst City Council [2000] NSWCA 88, 111 LGERA 181 Woolworths Ltd v Pallas Newco Pty Ltd [2004] NSWCA 422, 61 NSWLR 707
DATES OF HEARING:	11-12 August 2009 20-21October 2009
DATE OF JUDGMENT:	18 March 2010
LEGAL REPRESENTATIVES:	APPLCANT: Mr M Seymour SOLICITORS: Environmental Defender's Office FIRST RESPONDENT: Ms M Allars SOLICITORS: Deacons Lawyers SECOND RESPONDENT: Mr W Carney SOLICITORS: Stacks/Prime Law