Smyth v Nambucca Shire Council & Anor [1999] NSWLEC 226

Smyth v Nambucca Shire Council & Anor [1999] NSWLEC 226

The Commissioner made a legal error by not considering the ameliorative measures proposed as part of the development when determining if a species impact statement was required under s 77(3)(d1); the matter must be reconsidered with proper regard to all relevant factors, including ameliorative measures.

Parties
Applicant: G Smyth; First Respondent: Nambucca Shire Council; Second Respondent: Bellingen Shire Council
Jurisdiction
Australia
Judgment Date
23 September 1999
Procedural Posture
Section 56 a Appeal / Judgment
Outcome
appeal allowed
Legal Topics
Development Application, Threatened Species, Species Impact Statement, Ameliorative Measures
Environmental Law Planning Law Development Application Threatened Species Species Impact Statement Ameliorative Measures

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Parties

G Smyth

Applicant

Nambucca Shire Council

First Respondent

Bellingen Shire Council

Second Respondent

Procedural Posture

Section 56 a Appeal / Judgment

Legal Issues

  1. 1 whether development application requires a species impact statement in light of proposed ameliorative measures under s 5A and s 77(3)(d1) of the Environmental Planning & Assessment Act 1979

Ratio Decidendi

The Commissioner made a legal error by not considering the ameliorative measures proposed as part of the development when determining if a species impact statement was required under s 77(3)(d1); the matter must be reconsidered with proper regard to all relevant factors, including ameliorative measures.

Court Disposition

appeal allowed

Orders

  • the orders of the Commissioner are set aside
  • the matter is remitted to the Commissioner for determination in accordance with this judgment