Davis v Gosford City Council [2012] NSWLEC 1368

Davis v Gosford City Council [2012] NSWLEC 1368

The appeal was dismissed because, although the current application was not an abuse of process and the proposed incursion into the Hibbertia procumbens Habitat Management Zone would not by itself justify refusal, the proposal was likely to unacceptably impact the Eastern Pygmy-possum in the locality under s 79C(1)(b) of the Environmental Planning and Assessment Act 1979. Recent survey evidence showed a likely resident breeding population in or near the mature Banksia thicket proposed to be cleared, the earlier planning management zones did not accurately account for that habitat, and the proposed mitigation measures were uncertain. The proposal was also inconsistent with cl 24(b) of GLEP...

Jurisdiction
Australia
Judgment Date
21 November 2012
Procedural Posture
Class 1 Appeal Under S 97 of the Environmental Planning and Assessment Act 1979 Against Deemed Refusal of a Development Application / Principal Judgment After Hearing
Outcome
The appeal is dismissed and Development Application No. 40918/2011 is refused.
Legal Topics
['development Application for Waste Resource Recovery Facility' 'abuse of Process' 'eastern Pygmy Possum Habitat Impact' 'hibbertia Procumbens Habitat Impact' 'somersby Industrial Park Plan of Management']
['environmental Planning and Assessment' 'land and Environment' 'threatened Species Conservation'] ['development Application for Waste Resource Recovery Facility' 'abuse of Process' 'eastern Pygmy Possum Habitat Impact' 'hibbertia Procumbens Habitat Impact' 'somersby Industrial Park Plan of Management']

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Procedural Posture

Class 1 Appeal Under S 97 of the Environmental Planning and Assessment Act 1979 Against Deemed Refusal of a Development Application / Principal Judgment After Hearing

Legal Issues

  1. 1 ['Whether the development application was an abuse of process because it was materially the same as an earlier application dismissed by the Court in 2007.' 'Whether the proposal was likely to have an unacceptable impact on the Eastern Pygmy-possum in the locality.' 'Whether the proposed incursion into the Hibbertia procumbens Habitat Management Zone was likely to have an unacceptable impact on Hibbertia procumbens in the locality.' 'Whether the proposal was consistent with the planning framework requiring regard to the Plan of Management Somersby Industrial Park (2005) and protection of ecologically significant land.']

Ratio Decidendi

The appeal was dismissed because, although the current application was not an abuse of process and the proposed incursion into the Hibbertia procumbens Habitat Management Zone would not by itself justify refusal, the proposal was likely to unacceptably impact the Eastern Pygmy-possum in the locality under s 79C(1)(b) of the Environmental Planning and Assessment Act 1979. Recent survey evidence showed a likely resident breeding population in or near the mature Banksia thicket proposed to be cleared, the earlier planning management zones did not accurately account for that habitat, and the proposed mitigation measures were uncertain. The proposal was also inconsistent with cl 24(b) of GLEP...

Court Disposition

The appeal is dismissed and Development Application No. 40918/2011 is refused.

Orders

  • ['The appeal is dismissed.' 'Development Application No. 40918/2011 for a waste resource recovery facility at 168 Somersby Falls Road, Somersby is refused.' 'The exhibits are returned.']