Elzerman v Eurobodalla Shire Council (No 2) [2011] NSWLEC 1085

Elzerman v Eurobodalla Shire Council (No 2) [2011] NSWLEC 1085

The amendments to the development application were not 'minor' and therefore mandatory costs under s97B(2) apply; with the ameliorative measures in place, particularly as specified in the amended Bushfire Preparedness and Environmental Management Plan and accompanying conditions (including a registered positive covenant), the proposed development is not likely to significantly affect threatened species or ecological communities, and a species impact statement is not required. Consent is granted subject to the agreed conditions.

Jurisdiction
Australia
Judgment Date
13 April 2011
Procedural Posture
Development Application Appeal (class 1) / Judgment Following Contested Hearing and Amendment of Development Application
Outcome
Appeal upheld; consent granted subject to conditions; mandatory costs order under s97B(2);
Legal Topics
['development Application' 'endangered Ecological Community' 'species Impact Statement' 'restrictive Covenant' 'appeal Costs (s97 B)']
['environmental Law' 'planning and Development' 'property Law'] ['development Application' 'endangered Ecological Community' 'species Impact Statement' 'restrictive Covenant' 'appeal Costs (s97 B)']

Case Brief

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Procedural Posture

Development Application Appeal (class 1) / Judgment Following Contested Hearing and Amendment of Development Application

Legal Issues

  1. 1 ['Whether a species impact statement is required for the proposed development' "Whether the amendments to the application are 'minor' under s97B Environmental Planning and Assessment Act 1979" 'Appropriateness and content of conditions on consent, particularly registration of a restrictive covenant']

Ratio Decidendi

The amendments to the development application were not 'minor' and therefore mandatory costs under s97B(2) apply; with the ameliorative measures in place, particularly as specified in the amended Bushfire Preparedness and Environmental Management Plan and accompanying conditions (including a registered positive covenant), the proposed development is not likely to significantly affect threatened species or ecological communities, and a species impact statement is not required. Consent is granted subject to the agreed conditions.

Court Disposition

Appeal upheld; consent granted subject to conditions; mandatory costs order under s97B(2);

Orders

  • ['The appeal is upheld.' 'Leave is granted to amend the application as specified.' 'Applicant to pay the respondent $15,000 costs under s97B(2) within 60 days.' 'Development application 1172/2002 for a dwelling and associated works on Lot 81 DP706528 is approved subject to conditions in Annexure A.' 'Exhibits (other...