Smyth v Nambucca Shire Council - [1999] NSWLEC 226

Land and Environment Court

of New South Wales

CITATION:

Smyth v Nambucca Shire Council & Anor [1999] NSWLEC 226

PARTIES

APPLICANT:
G Smyth

FIRST RESPONDENT:
Nambucca Shire Council
SECOND RESPONDENT
Bellingen Shire Council

NUMBER:

10537 of 1998

CORAM:

Lloyd J

KEY ISSUES:

Section 56A Appeal :- whether development likely to significantly affect threatened species etc - requires consideration of proposed ameliorative measures

LEGISLATION CITED:

Environmental Planning & Assessment Act 1979, s 5A, s 77(3)(d1)

DATES OF HEARING:

09/20/1999

DATE OF JUDGMENT DELIVERY:

09/23/1999

LEGAL REPRESENTATIVES:

APPLICANT:
W R Davison SC
SOLICITORS:
Pike Pike & Fenwick
FIRST RESPONDENT:
No appearance
SECOND RESPONDENT:
S M Berveling (Solicitor)
SOLICITORS:
Abbott Tout

JUDGMENT:

IN THE LAND AND Matter No: 10537 of 1998

ENVIRONMENT COURT Coram: Lloyd J

OF NEW SOUTH WALES Decision date: 23/09/99

Smyth

Applicant

Nambucca Shire Council & Anor

Respondent

JUDGMENT

HIS HONOUR:

1. This is an appeal under s 56A of the Land & Environment Court Act 1979 against the decision of a Commissioner who dismissed an appeal against the deemed refusal of a development application for the subdivision of land. An appeal under s 56A is limited to a question of law.

2. The Commissioner identified a number of issues in the proceedings, only the first of which was considered. That issue was stated as follows:

1. Whether the development application needs to be accompanied by a Species Impact Statement prepared in accordance with Division 2 of Part 6 of the Threatened Species Conservation Act 1995 before the Court is empowered to embark upon a consideration of the development application.

3. The issue was governed by s 77 of the Environmental Planning & Assessment Act 1979 (“the EP&A Act”) prior to the amendment of that section in 1998. Subsection (3) of s 77 relevantly provided:

(3) A development application shall:

...

(d1) If the application is in respect of development on land that is, or is a part of, critical habitat or is likely to significantly affect threatened species, populations or ecological communities, or their habitats, be accompanied by a species impact statement prepared in accordance with Division 2 of Part 6 of the Threatened Species Conservation Act 1995.

4. Section 5A of the EP&A Act, as it stood prior to its amendment in 1998, is also relevant. It provided 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 77, 90 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…

Grounds of appeal

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

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

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

Consideration

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

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

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Details

Case: [1999] NSWLEC 226
Decision Date: 09/23/1999

CaseChat Overview and Summary

The Land and Environment Court of New South Wales was presented with an appeal by G Smyth against the Nambucca Shire Council and Bellingen Shire Council regarding the refusal of a development application for land subdivision. The primary legal issue before the court was whether the development application needed to be accompanied by a Species Impact Statement (SIS) prepared in accordance with the Threatened Species Conservation Act 1995 before the Court could consider the application. This was governed by section 77 of the Environmental Planning and Assessment Act 1979, which required an SIS if the application involved development on land that was or was part of critical habitat, or was likely to significantly affect threatened species, populations, or ecological communities, or their habitats.

The Commissioner dismissed the appeal, holding that the development application needed to be accompanied by an SIS and that the consideration of any ameliorative measures could not be taken into account as part of the 8-part test under section 5A of the Environmental Planning and Assessment Act. The applicant argued that the Commissioner erred in law by not considering the proposed ameliorative measures in determining whether the development was likely to significantly affect threatened species.

The court found that the Commissioner's determination was incorrect because the relevant provision required an assessment of the impact of the proposed development, including any associated ameliorative measures. The court held that the Commissioner must determine whether there was likely to be a significant effect by considering the proposed development and its ameliorative measures, and only if this determination was in the affirmative, an SIS became necessary.

Accordingly, the appeal was allowed, the Commissioner’s orders were set aside, and the matter was remitted to the Commissioner for redetermination in accordance with the court's judgment. The second respondent was ordered to pay the applicant's costs of the appeal, and no order for costs was made between the applicant and the first respondent.

Orders