Fife Capital Pty Ltd v Cumberland Council [2017] NSWLEC 1354

Fife Capital Pty Ltd v Cumberland Council [2017] NSWLEC 1354

The Court found that, based on evidence, the proposal would not directly remove the EEC community and indirect impacts would not place the local occurrence at risk of extinction. It was held that an SIS is not required and that a vegetation management plan and increased buffer are appropriate conditions to ameliorate potential environmental impacts. The proposal must be amended to provide an increased buffer where the EEC is at its narrowest before a final determination.

Parties
Applicant: Fife Capital Pty Ltd; Respondent: Cumberland Council
Jurisdiction
Australia
Judgment Date
06 July 2017
Procedural Posture
Development Appeal / Decision on Directions/merit
Outcome
Directions made for amendment of proposal and further documentation prior to final determination; not a final grant or refusal at this stage.
Legal Topics
Development Consent, Endangered Ecological Communities, Requirement for Species Impact Statement, Vegetated Buffer Requirements, Integrated Development, Buffers to Waterways
Planning and Environment Development Consent Endangered Ecological Communities Requirement for Species Impact Statement Vegetated Buffer Requirements Integrated Development Buffers to Waterways

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Parties

Fife Capital Pty Ltd

Applicant

Cumberland Council

Respondent

Procedural Posture

Development Appeal / Decision on Directions/merit

Legal Issues

  1. 1 Whether a species impact statement is required under s 78A(8)(b) of the Environmental Planning and Assessment Act 1979 due to likely significant effect on Endangered Ecological Community (EEC)
  2. 2 Whether proposed development provides an adequate buffer to Prospect Creek and remnant vegetation under the Greater Metropolitan Regional Environmental Plan No. 2 – Georges River Catchment (REP 2)

Ratio Decidendi

The Court found that, based on evidence, the proposal would not directly remove the EEC community and indirect impacts would not place the local occurrence at risk of extinction. It was held that an SIS is not required and that a vegetation management plan and increased buffer are appropriate conditions to ameliorate potential environmental impacts. The proposal must be amended to provide an increased buffer where the EEC is at its narrowest before a final determination.

Court Disposition

Directions made for amendment of proposal and further documentation prior to final determination; not a final grant or refusal at this stage.

Orders

  • Applicant to prepare and submit a Vegetation Management Plan addressing earthworks and ongoing management, specifically addressing staging, soil exposure, ongoing works, judgment findings, and key threatening processes.
  • Applicant to amend proposal to reflect increased buffer and exclude bulk earthworks from the increased buffer area.