David DeBattista v Shoalhaven City Council [2017] NSWLEC 1251

David DeBattista v Shoalhaven City Council [2017] NSWLEC 1251

The modification application would remove conditions protecting Melaleuca biconvexa and would result in removal of all such plants on the Subject Site. The Court found that the Subject Site was the study area, that no adjoining or contiguous habitat contained Melaleuca biconvexa, and that the stand on the Subject...

Source-derived case information.

Jurisdiction
Australia
Judgment Date
25 May 2017
Procedural Posture
Class 1 Appeal Under S97 AA of the Environmental Planning and Assessment Act 1979 Against Refusal of a Modification Application Under S96(1 A) / Determination After Hearing
Outcome
Appeal dismissed; modification application refused.
Legal Topics
['minimal Environmental Impact Under S96(1 A) of the EPA Act' 'modification of Subdivision Consent Conditions' 'protection of Melaleuca Biconvexa' 'significant Impact on Threatened Species' 'viable Local Population' 'precautionary Principle']
['planning and Environment' 'development Consent Modification' 'threatened Species'] ['minimal Environmental Impact Under S96(1 A) of the EPA Act' 'modification of Subdivision Consent Conditions' 'protection of Melaleuca Biconvexa' 'significant Impact on Threatened Species' 'viable Local Population' 'precautionary Principle']

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Procedural Posture

Class 1 Appeal Under S97 AA of the Environmental Planning and Assessment Act 1979 Against Refusal of a Modification Application Under S96(1 A) / Determination After Hearing

Legal Issues

  1. 1 ['Whether the proposed modification of development consent conditions was of minimal environmental impact for the purposes of s96(1A) of the Environmental Planning and Assessment Act 1979.' 'Whether the Melaleuca biconvexa plants on Lot 6 of DP 1082382 constituted a viable local population of a threatened species.' 'Whether removal of the Melaleuca biconvexa plants would have a significant impact on a threatened species listed under Schedule 2 of the Threatened Species Conservation Act 1995.']

Ratio Decidendi

The modification application would remove conditions protecting Melaleuca biconvexa and would result in removal of all such plants on the Subject Site. The Court found that the Subject Site was the study area, that no adjoining or contiguous habitat contained Melaleuca biconvexa, and that the stand on the Subject Site constituted a viable local population. Its removal would have an adverse effect on the life cycle of the species such that the local population would be placed at risk of extinction, amounting to a significant impact on a threatened plant species. Accordingly, the modification would not have minimal environmental impact and did not fall within s96(1A) of the EPA Act.

Court Disposition

Appeal dismissed; modification application refused.

Orders

  • ['The appeal is dismissed.' 'The application to modify conditions of consent SF 10011, issued by Shoalhaven City Council 30 May 2011, is refused.' 'The exhibits are returned with the exception of Exhibits 1, A and B.']