Carriage v Stockland Development Pty Limited & Ors [No 10] [2005] NSWLEC 272

Carriage v Stockland Development Pty Limited & Ors [No 10] [2005] NSWLEC 272

The Applicant did not prove that the First Respondent picked the SCESFC in the relevant part of Lot 235 zoned Residential 2(b), because the evidence did not establish where the alleged slashing occurred and the evidence accepted by the Court was that no SCESFC was picked or harmed in that area. The Applicant also did not prove on the balance of probabilities that the fill on Lot 235 would alter the hydrology in and around Tramway Creek in such a way that the SCESFC would suffer damage within s 118D(1). The evidence showed possible future change and uncertainty, but not proven damage. Accordingly, the Court declined to make the declaration sought under ss 118A(2) and 118D(1).

Jurisdiction
Australia
Judgment Date
01 July 2005
Procedural Posture
Class 4 Civil Enforcement Proceedings in the Land and Environment Court of New South Wales / Judgment on Prayer 6 of the Fifth Further Amended Application Class 4 Concerning Alleged Contraventions of Ss 118 A(2) and 118 D(1) of the National Parks and Wildlife Act 1974
Outcome
Prayer 6 of the Fifth Further Amended Application Class 4 was dismissed.
Legal Topics
['endangered Ecological Community' 'sydney Coastal Estuary Swamp Forest Community' 'picking Plants' 'damage to Habitat' 'key Threatening Process' 'hydrological Impacts' 'construction Certificates' 'development Consent']
['environmental Law' 'planning and Development Law'] ['endangered Ecological Community' 'sydney Coastal Estuary Swamp Forest Community' 'picking Plants' 'damage to Habitat' 'key Threatening Process' 'hydrological Impacts' 'construction Certificates' 'development Consent']

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Procedural Posture

Class 4 Civil Enforcement Proceedings in the Land and Environment Court of New South Wales / Judgment on Prayer 6 of the Fifth Further Amended Application Class 4 Concerning Alleged Contraventions of Ss 118 A(2) and 118 D(1) of the National Parks and Wildlife Act 1974

Legal Issues

  1. 1 ['Whether the First Respondent picked plants that were part of the Sydney Coastal Estuary Swamp Forest Community contrary to s 118A(2) of the National Parks and Wildlife Act 1974.' 'Whether the First Respondent caused or would cause damage to habitat of an endangered ecological community contrary to s 118D(1) of the National Parks and Wildlife Act 1974 by placing fill on Lot 235.' 'Whether the listing of alteration to natural flow regimes as a key threatening process was sufficient to prove damage under s 118D(1).' 'How the phrase "causes damage" in s 118D(1) should be interpreted.' 'Whether change to groundwater or species composition was sufficient to establish damage to the SCESFC.']

Ratio Decidendi

The Applicant did not prove that the First Respondent picked the SCESFC in the relevant part of Lot 235 zoned Residential 2(b), because the evidence did not establish where the alleged slashing occurred and the evidence accepted by the Court was that no SCESFC was picked or harmed in that area. The Applicant also did not prove on the balance of probabilities that the fill on Lot 235 would alter the hydrology in and around Tramway Creek in such a way that the SCESFC would suffer damage within s 118D(1). The evidence showed possible future change and uncertainty, but not proven damage. Accordingly, the Court declined to make the declaration sought under ss 118A(2) and 118D(1).

Court Disposition

Prayer 6 of the Fifth Further Amended Application Class 4 was dismissed.

Orders

  • ['Prayer 6 of the Fifth Further Amended Application Class 4 is dismissed.' 'The question of costs is reserved.' 'The exhibits are to be returned.']