Gales Holdings Pty Limited v Tweed Shire Council [2006] NSWLEC 212

Gales Holdings Pty Limited v Tweed Shire Council [2006] NSWLEC 212

The Wallum Froglet is a vulnerable threatened species and the Froglets north and south of Turnock Street were found to comprise two separate and viable local populations. The proposed filling would destroy all Wallum Froglet habitat north of Turnock Street, leaving no prospect of survival for the individuals occupying that area. That threatened extinction of a viable local population was likely to significantly affect the species, and the uncertainty in the expert evidence warranted caution and application of the precautionary principle. Accordingly, an SIS was required under s 78A(8)(b) of the Environmental Planning and Assessment Act 1979.

Jurisdiction
Australia
Judgment Date
28 April 2006
Procedural Posture
Class 1 Appeal Against Deemed Refusal of Development Application No. 05/0004 for Filling and Haul Road Development / Determination of Preliminary Point Whether a Species Impact Statement Is Required
Outcome
The Court determined that a species impact statement is required for the proposed fill and haul road development because of its likely significant effect on the Wallum Froglet.
Legal Topics
['development Application' 'species Impact Statement' 'wallum Froglet' 'significant Effect on Threatened Species' 'precautionary Principle' 'cumulative Impact']
['environmental Law' 'planning Law' 'threatened Species Conservation'] ['development Application' 'species Impact Statement' 'wallum Froglet' 'significant Effect on Threatened Species' 'precautionary Principle' 'cumulative Impact']

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Procedural Posture

Class 1 Appeal Against Deemed Refusal of Development Application No. 05/0004 for Filling and Haul Road Development / Determination of Preliminary Point Whether a Species Impact Statement Is Required

Legal Issues

  1. 1 ['Whether the development application for filling and haul road development should be accompanied by a species impact statement under s 78A(8)(b) of the Environmental Planning and Assessment Act 1979.' 'Whether the proposed development is likely to significantly affect the Wallum Froglet or its habitat.' 'Whether Wallum Froglets north and south of Turnock Street comprise one population or separate viable local populations.' 'Whether uncertainty about genetic interchange and movement across Turnock Street and Elrond Drive required application of the precautionary principle.' 'Whether cumulative impacts of related development applications were relevant.']

Ratio Decidendi

The Wallum Froglet is a vulnerable threatened species and the Froglets north and south of Turnock Street were found to comprise two separate and viable local populations. The proposed filling would destroy all Wallum Froglet habitat north of Turnock Street, leaving no prospect of survival for the individuals occupying that area. That threatened extinction of a viable local population was likely to significantly affect the species, and the uncertainty in the expert evidence warranted caution and application of the precautionary principle. Accordingly, an SIS was required under s 78A(8)(b) of the Environmental Planning and Assessment Act 1979.

Court Disposition

The Court determined that a species impact statement is required for the proposed fill and haul road development because of its likely significant effect on the Wallum Froglet.

Orders

  • ['In accordance with s 78A(8)(b) of the Environmental Planning and Assessment Act 1979, a species impact statement is required to examine the impact on the Wallum Froglet arising from the proposed fill and haul road development.']