Plumb v Penrith City Council - [2002] NSWLEC 223

Land and Environment Court

of New South Wales

CITATION: Plumb v Penrith City Council and Anor [2002] NSWLEC 223

PARTIES:
APPLICANT
Plumb
RESPONDENTS
Penrith City Council and Anor

FILE NUMBER(S): (4)0393 of 2002

CORAM: Pearlman J

KEY ISSUES: Judicial Review :- development application - educational establishment - whether species impact statement required - endangered ecological community - Cumberland Plain Woodland - jurisdictional fact - opinion evidence - whether ecological community exists on site - whether development likely to significantly affect ecological community - application of the eight part test

LEGISLATION CITED: Environmental Planning and Assessment Act 1979 s 4(1), s 5A, s 78A(8)(b)
Environmental Planning and Assessment Regulation 2000 cl 5, cl 87, cl 88
National Parks and Wildlife Act 1974 div 1B of pt 4
Sydney Regional Environmental Plan No 30 - St Marys cl 20(1)(a), cl 37
Threatened Species Conservation Act 1995 s 4(1), s 6(3), s 12, s 15, pt 3 sch 1

CASES CITED: Carstens v Pittwater Council (1999) 111 LGERA 1;
Corporation of the City of Enfield v Development Assessment Commission and Anor (1999) 199 CLR 135;
Helman v Byron Shire Council and Anor (1995) 87 LGERA 349;
Masterbuilt Pty Ltd v Hornsby Shire Council [2002] NSWLEC 170;
Timbarra Protection Coalition Inc v Ross Mining NL (1999) 46 NSWLR 55

DATES OF HEARING: 22/10/2002; 23/10/2002; 24/10/2002

DATE OF JUDGMENT:
12/02/2002

LEGAL REPRESENTATIVES:

APPLICANT
Mr C D Norton (Barrister)
SOLICITORS
Woolf Associates
FIRST RESPONDENT
Mr J A Ayling SC
SOLICITORS
Phillips Fox
SECOND RESPONDENT
Mr B J Preston SC
SOLICITORS
Makinson & d'Apice

JUDGMENT:

(4)0393 of 2002

Pearlman J
2 December 2002

NOEL PLUMB

Applicant

PENRITH CITY COUNCIL

First Respondent

THE TRUSTEES OF THE ROMAN CATHOLIC

CHURCH FOR THE DIOCESE OF PARRAMATTA

Second Respondent

Judgment

Introduction

1 The applicant, Mr Noel Plumb, challenges the validity of a development consent granted by the first respondent, Penrith City Council, to the second respondent, the Trustees of the Roman Catholic Church for the Diocese of Parramatta.

2 The development for which consent was given is an educational establishment, being the construction of a high school (Xavier College) upon part of lot 2 in DP 803832, at Ninth Avenue, Llandilo (“the school site”). The school site, which comprises about 6 hectares, is located at the north-western corner of a much larger area of land commonly known as “the ADI site”.

3 The applicant claims that the development application (which led to the grant of development consent) was made in respect of development likely to significantly affect Cumberland Plain Woodland (“CPW”), a threatened ecological community. The applicant claims, as a consequence, that the development application was required to have been accompanied by a species impact statement, that it was required to be publicly exhibited, and that the concurrence of the Director-General of National Parks and Wildlife was required.

4 It is common ground that none of these steps were taken. The issue is whether they were required to be taken. That issue raises the two questions which…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Keep reading for free

Create a free CaseChat account to read Plumb v Penrith City Council and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2002] NSWLEC 223
Decision Date: 12/02/2002

CaseChat Overview and Summary

In the Land and Environment Court of New South Wales, Noel Plumb challenged the validity of a development consent granted by Penrith City Council to the Trustees of the Roman Catholic Church for the Diocese of Parramatta for the construction of a high school on a site that Plumb claimed contained Cumberland Plain Woodland (CPW), a threatened ecological community. Plumb argued that the development application should have been accompanied by a species impact statement, required public exhibition, and obtained the concurrence of the Director-General of National Parks and Wildlife, none of which occurred. The primary issue was whether CPW was present on the school site and whether the development application was for development likely to significantly affect CPW. Pearlman J concluded that CPW was present on the school site but determined that the development was not likely to significantly affect CPW. Therefore, the application for judicial review was dismissed, and the decision of the council was upheld. The court reserved the decision on costs.

Orders