Denwol Suffolk Pty Ltd v Byron Shire Council [2023] NSWLEC 1602

Denwol Suffolk Pty Ltd v Byron Shire Council [2023] NSWLEC 1602

The proposed development would clear 0.13ha of Coastal Cypress Pine Forest EEC and result in the removal of 11 Coastal Cypress Pines, did not adequately demonstrate avoidance, minimisation or mitigation of impacts, and would likely contribute significantly to the risk of that endangered ecological community becoming extinct. Because s 7.16(2) of the Biodiversity Conservation Act 2016 required refusal where serious and irreversible impacts were found, and because the ecological and visual impacts were also unacceptable under s 4.15 of the Environmental Planning and Assessment Act 1979, the appeal was dismissed and the development application refused.

Jurisdiction
Australia
Judgment Date
12 October 2023
Procedural Posture
Class 1 Appeal Against Actual Refusal of a Development Application Under S 8.7 of the Environmental Planning and Assessment Act 1979 / Principal Judgment After Hearing
Outcome
Appeal dismissed; development application refused.
Legal Topics
['development Application Refusal' 'serious and Irreversible Impacts on Biodiversity Values' 'coastal Cypress Pine Forest Endangered Ecological Community' 'biodiversity Development Assessment Report' 'avoidance, Minimisation and Mitigation of Biodiversity Impacts' 'bushfire Asset Protection Zones' 'tree Removal and Vegetation Management']
['environmental Law' 'planning and Development' 'biodiversity Conservation'] ['development Application Refusal' 'serious and Irreversible Impacts on Biodiversity Values' 'coastal Cypress Pine Forest Endangered Ecological Community' 'biodiversity Development Assessment Report' 'avoidance, Minimisation and Mitigation of Biodiversity Impacts' 'bushfire Asset Protection Zones' 'tree Removal and Vegetation Management']

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Procedural Posture

Class 1 Appeal Against Actual Refusal of a Development Application Under S 8.7 of the Environmental Planning and Assessment Act 1979 / Principal Judgment After Hearing

Legal Issues

  1. 1 ['Whether the proposed development was likely to have serious and irreversible impacts on biodiversity values, particularly the Coastal Cypress Pine Forest in the NSW North Coast Bioregion Endangered Ecological Community.' 'Whether the development application adequately avoided, minimised or mitigated impacts on biodiversity values.' 'Whether the likely impacts of the development, including tree and vegetation removal and impacts on streetscape character, were acceptable under s 4.15 of the Environmental Planning and Assessment Act 1979.' 'Whether the biodiversity offsets scheme threshold was exceeded and a Biodiversity Development Assessment Report was required.' 'Whether the proposed asset protection zone requirements for bushfire protection were satisfied.']

Ratio Decidendi

The proposed development would clear 0.13ha of Coastal Cypress Pine Forest EEC and result in the removal of 11 Coastal Cypress Pines, did not adequately demonstrate avoidance, minimisation or mitigation of impacts, and would likely contribute significantly to the risk of that endangered ecological community becoming extinct. Because s 7.16(2) of the Biodiversity Conservation Act 2016 required refusal where serious and irreversible impacts were found, and because the ecological and visual impacts were also unacceptable under s 4.15 of the Environmental Planning and Assessment Act 1979, the appeal was dismissed and the development application refused.

Court Disposition

Appeal dismissed; development application refused.

Orders

  • ['Pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979, the Applicant is to pay those costs of the Respondent thrown away as a result of the amendment of the application as agreed or assessed.' 'The appeal is dismissed.' 'Development Application 10.2022.137.1 seeking consent for the demolition...