Masterbuilt Pty Limited v Hornsby Shire Council [2002] NSWLEC 170

Masterbuilt Pty Limited v Hornsby Shire Council [2002] NSWLEC 170

The council failed to establish any error of law. Positive answers to parts of the s 5A test did not compel a finding that the proposal was likely to significantly affect the Blue Gum High Forest ecological community or that a Species Impact Statement was required. The Senior Commissioner was entitled to make factual findings about the ecological evidence and the presence of Blue Gum High Forest on the site, and in any event found that a Species Impact Statement was not required. The Senior Commissioner was also entitled to find that clause 24 of SEPP 5 was satisfied; on appeal the Court had the council's functions and discretions under s 39(2) and could take the site analysis into...

Jurisdiction
Australia
Judgment Date
26 September 2002
Procedural Posture
Appeal by Notice of Motion Pursuant to S 56 a of the Land and Environment Court Act 1979 From a Senior Commissioner's Decision Granting Development Consent Subject to Conditions / Judgment Determining the Appeal
Outcome
Appeal dismissed; appellant council ordered to pay Masterbuilt Pty Limited's costs as respondent to the appeal.
Legal Topics
['species Impact Statement' 'eight Part Test Under S 5 a of the Environmental Planning and Assessment Act 1979' 'blue Gum High Forest Ecological Community' 'sepp 5 Site Analysis' 'functions of the Court on Appeal Under S 39(2) of the Land and Environment Court Act 1979' 'error of Law Appeal']
['environmental Planning and Assessment' 'land and Environment' 'threatened Species' 'development Consent'] ['species Impact Statement' 'eight Part Test Under S 5 a of the Environmental Planning and Assessment Act 1979' 'blue Gum High Forest Ecological Community' 'sepp 5 Site Analysis' 'functions of the Court on Appeal Under S 39(2) of the Land and Environment Court Act 1979' 'error of Law Appeal']

Case Brief

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Procedural Posture

Appeal by Notice of Motion Pursuant to S 56 a of the Land and Environment Court Act 1979 From a Senior Commissioner's Decision Granting Development Consent Subject to Conditions / Judgment Determining the Appeal

Legal Issues

  1. 1 ['Whether positive answers to one or more factors in the eight-part test in s 5A of the Environmental Planning and Assessment Act 1979 required a finding that the development was likely to significantly affect the Blue Gum High Forest ecological community and therefore required a Species Impact Statement under s 78A(8)(b).' 'Whether the Senior Commissioner erred in law by preferring one ecologist\'s evidence, by his approach to the term "forest" in Blue Gum High Forest, or by finding no Blue Gum High Forest on the site.' 'Whether the development application complied with clause 24 of State Environmental Planning Policy No. 5 - Housing for Older People and People with a Disability.' 'Whether, on appeal, the Court was the consent authority or merely exercised the functions and discretions of the consent authority under s 39(2) of the Land and Environment Court Act 1979.']

Ratio Decidendi

The council failed to establish any error of law. Positive answers to parts of the s 5A test did not compel a finding that the proposal was likely to significantly affect the Blue Gum High Forest ecological community or that a Species Impact Statement was required. The Senior Commissioner was entitled to make factual findings about the ecological evidence and the presence of Blue Gum High Forest on the site, and in any event found that a Species Impact Statement was not required. The Senior Commissioner was also entitled to find that clause 24 of SEPP 5 was satisfied; on appeal the Court had the council's functions and discretions under s 39(2) and could take the site analysis into...

Court Disposition

Appeal dismissed; appellant council ordered to pay Masterbuilt Pty Limited's costs as respondent to the appeal.

Orders

  • ['Appeal dismissed.' 'That the appellant council pay the costs of Masterbuilt Pty Limited as respondent to the appeal.']