Raymond John Davis & Anor v Gosford City Council

[2015] HCASL 74

RAYMOND JOHN DAVIS & ANOR

v

GOSFORD CITY COUNCIL

[2015] HCASL 74
S287/2014

1. The applicants applied to the respondent Council ("the Council") for development consent under the Environmental Planning and Assessment Act 1979 (NSW) ("the EPA Act") to establish an integrated resource recovery facility ("a tip") on land in the Somersby Industrial Park ("the land"). The proposed development site contains native vegetation, which provides a habitat for the Eastern Pygmy Possum ("the possums").

2. Under s 79B(3) of the EPA Act, development consent cannot be given without the concurrence of the Director-General of the Department of Environment, Climate Change and Water ("the Director-General") to a development that is, or is part of, "critical habitat" or that is "likely to significantly affect a threatened species, population or ecological community, or its habitat". As permitted under cl 64 of the Environmental Planning and Assessment Regulation 2000 (NSW) ("the Regulation"), the Director-General had given written notice that concurrence could be assumed in relation to certain areas, including the land, and certain threatened species, including the possums ("the notice of assumed concurrence").

3. The applicants appealed to the Land and Environment Court of New South Wales ("the LEC") (Commissioners Brown and Fakes) against the deemed refusal of their application. The LEC was required to take into consideration such of the matters as were relevant to the development under s 79C(1) of the EPA Act. Section 79C(1)(b) required that consideration be given to likely environmental impacts on the natural environment. The LEC found that the impact of the proposed development on the possums is unacceptable[1] and that this finding warranted the refusal of the application[2].  The conclusion took into account the LEC's acceptance of expert evidence adduced by the Council[3].  It was arrived at without reference to the notice of assumed concurrence. 

   [1]Davis v Gosford City Council [2012] NSWLEC 1329 at [39].

   [2]Davis v Gosford City Council [2012] NSWLEC 1329 at [53].

   [3]Davis v Gosford City Council [2012] NSWLEC 1329 at [44], [50].

4. An appeal to a judge of the LEC (Pepper J) was dismissed. Relevantly, Pepper J held that the Director-General's concurrence for the purposes of s 79B(3) was irrelevant to the determination of the matters the consent authority is required to take into consideration under s 79C(1)(b) of the EPA Act.

5. The Court of Appeal of the Supreme Court of New South Wales (Beazley P, Ward JA and Preston CJ of LEC) granted the applicants leave to appeal on a ground which raised consideration of the significance, if any, of the notice of assumed concurrence. The Court of Appeal said that as the proposed development did not engage either of the conditions in s 79B(3), there was no power for the Director-General to notify concurrence (or assumed concurrence)[4].  The Court of Appeal did not accept that the Commissioners had been bound to give consideration to the notice of assumed concurrence[5].  In this regard, the Court of Appeal distinguished Michel Projects Pty Ltd v Randwick Municipal Council[6].  The appeal was dismissed.

   [4]Davis v Gosford City Council [2014] NSWCA 343 at [121].

   [5]Davis v Gosford City Council [2014] NSWCA 343 at [124].

   [6](1982) 46 LGRA 410.

6. The applicants apply for special leave to appeal.  They require a short enlargement of time in which to file the application[7].  They have filed an affidavit providing a satisfactory explanation for the delay.  However, for the reasons to be given, there is no utility in making an order dispensing with compliance with the Rules in this respect. 

   [7]High Court Rules 2004 (Cth), r 41.02.1.

7. The applicants' proposed challenge is to the Court of Appeal's analysis of the Director-General's statutory power to notify concurrence (or assumed concurrence) to a development and to the Court's conclusion that it was not incumbent on the Commissioners (acting as the consent authority on the appeal against the deemed refusal) to take the Director-General's opinion into account. The applicants' summary of argument is directed to an attack on the Court of Appeal's conclusion concerning the power. It does not identify features of the statutory scheme that would make the notice of assumed concurrence a mandatory relevant consideration in the determination of a development application that is not the subject of s 79B(3).

8. We are not persuaded that an appeal to this Court would enjoy sufficient prospects of success to warrant a grant of special leave. 

9. The application is dismissed.

10. Pursuant to r 41.11.1, we direct the Registrar to draw up, sign and seal an order dismissing the application with costs.

V.M. Bell
6 May 2014 S.J. Gageler