Byron Property Developments Pty Ltd v Byron Shire Council [2010] NSWLEC 1026

Byron Property Developments Pty Ltd v Byron Shire Council [2010] NSWLEC 1026

The applicant's ecological assessment did not adequately address the required section 5A(2) factors for the Durobby, including defining a viable local population, assessing habitat beyond the site boundary, and considering the importance, genetic relationship and value of the trees. Because insufficient information was provided, the Court could not make the determination required by section 5A(1) and therefore could not approve dwelling 4. The evidence supported approval of the development for three dwellings subject to conditions deleting dwelling 4.

Jurisdiction
Australia
Judgment Date
05 February 2010
Procedural Posture
Development Consent Appeal Under Section 97(1) of the Environmental Planning and Assessment Act 1979 / Judgment After Hearing
Outcome
Appeal upheld subject to deletion of dwelling 4; development consent granted for the application subject to conditions deleting dwelling 4.
Legal Topics
['development Consent Conditions' 'removal of Threatened Species' 'seven Part Test Under Section 5 a of the Environmental Planning and Assessment Act 1979' 'endangered Ecological Community' 'durobby (syzgium Moorei)' 'littoral Rainforest']
['environmental Planning and Assessment' 'threatened Species Conservation'] ['development Consent Conditions' 'removal of Threatened Species' 'seven Part Test Under Section 5 a of the Environmental Planning and Assessment Act 1979' 'endangered Ecological Community' 'durobby (syzgium Moorei)' 'littoral Rainforest']

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Procedural Posture

Development Consent Appeal Under Section 97(1) of the Environmental Planning and Assessment Act 1979 / Judgment After Hearing

Legal Issues

  1. 1 ['Whether the applicant provided sufficient information to enable a determination under section 5A(1) of the Environmental Planning and Assessment Act 1979 as to likely significant effects on threatened species, populations or ecological communities, or their habitats.' 'Whether dwelling 4 should be approved despite requiring removal of two Durobby trees and vegetation of conservation value.' 'Whether the development application should be approved for three dwellings subject to conditions deleting dwelling 4.']

Ratio Decidendi

The applicant's ecological assessment did not adequately address the required section 5A(2) factors for the Durobby, including defining a viable local population, assessing habitat beyond the site boundary, and considering the importance, genetic relationship and value of the trees. Because insufficient information was provided, the Court could not make the determination required by section 5A(1) and therefore could not approve dwelling 4. The evidence supported approval of the development for three dwellings subject to conditions deleting dwelling 4.

Court Disposition

Appeal upheld subject to deletion of dwelling 4; development consent granted for the application subject to conditions deleting dwelling 4.

Orders

  • ['The appeal in respect of the property at 51 Shirley Street Byron Bay is upheld subject to deletion of dwelling 4.' 'I grant consent to the development application no (DA10.2008.387.1) lodged on 20 June 2008 subject to the conditions which delete dwelling 4 and these conditions form Annexure "A".' 'The council is...