Allen Price & Scarratts Pty Ltd v Shoalhaven City Council [2021] NSWLEC 1362

Procedural Posture

Class 1 Appeal Against Deemed Refusal of Development Application for Staged Subdivision and Associated Works / Principal Judgment; Final Orders Granting Development Consent Subject to Conditions

Legal Issues

1. 1 ['Whether a species impact statement was required for impacts on threatened species or ecological communities, including the Green and Golden Bell Frog, Yellow-Bellied Glider and endangered ecological communities.' 'Whether ameliorative measures proposed as part of the development application could be considered in the s 5A assessment of significance.' 'Whether the proposed development would unacceptably affect hollow bearing trees and habitat for arboreal mammals or micro bats.' 'Whether PFAS and other contamination could be remediated so that the land would be suitable for the proposed development under State Environmental Planning Policy No 55—Remediation of Land.' 'Whether remediation by stabilisation and encapsulation in an on-site containment cell, with further investigation and adaptive management conditions, was acceptable.' 'Whether stormwater and water sensitive urban design measures adequately addressed water quality, including potential impacts on downstream oyster aquaculture areas.' 'Whether public interest concerns, including traffic, flooding, bushfire, gates, dumping, biodiversity and long-term management, warranted refusal.' 'Whether the Court could be satisfied of relevant jurisdictional requirements in Shoalhaven Local Environmental Plan 2014, including clauses 7.1, 7.3, 7.4, 7.5 and 7.6.']

Ratio Decidendi

The Court held that the amended proposal, including its ameliorative measures, could be assessed as the development before the Court. The seven part tests did not require a species impact statement for the Green and Golden Bell Frog, Yellow-Bellied Glider or endangered ecological communities, and the threatened species evidence did not warrant refusal. The PFAS and other contamination could be remediated before development by removal, stabilisation, encapsulation and further validated management, with adaptive management and enforceable conditions providing sufficient certainty. WSUD and other conditions addressed water quality and public interest concerns. The Court was satisfied that...

Court Disposition

Appeal upheld; development consent granted subject to conditions.

Orders

• ['The Applicant be granted leave to rely on the plans and other documents listed in Condition 3 of Annexure A.' 'The Applicant is to pay the Respondent\'s costs "thrown away" as a result of the amendments made to the development application on 5 August 2020 pursuant to section 8.15(3) of the Environmental Planning...