Julian Malnic & anor v Northern Beaches Council [2017] NSWLEC 1761

Julian Malnic & anor v Northern Beaches Council [2017] NSWLEC 1761

The modification was refused because the evidence did not justify removing Condition 65. Allowing dogs and horses on Lots 1 and 2 would introduce an unnecessary and difficult-to-enforce risk to the environmental features of the site and the Conservation Areas, including potential habitat for threatened species such as the Southern Brown Bandicoot and Rosenberg's Goanna. The applicants also provided no adequate evidence that horse droppings would not contribute nutrient run-off affecting the Coastal Upland Swamp, and the approved subdivision had been granted on the basis that stringent environmental controls, including the prohibition on domestic animals, would apply across all approved lots.

Jurisdiction
Australia
Judgment Date
09 June 2017
Procedural Posture
Class 1 Appeal Concerning a Modification Application Under Section 96(8) of the Environmental Planning and Assessment Act 1979 to Amend Conditions of Development Consent for Subdivision / Decision After Hearing
Outcome
Appeal dismissed; modification application refused.
Legal Topics
['modification of Subdivision Consent Conditions' 'restriction on Companion Animals, Horses and Stock' 'biodiversity Protection' 'threatened Species and Habitat Impacts' 'conservation Areas and Section 88 B Instruments']
['environmental Planning and Assessment' 'land and Environment' 'development Consent Modification'] ['modification of Subdivision Consent Conditions' 'restriction on Companion Animals, Horses and Stock' 'biodiversity Protection' 'threatened Species and Habitat Impacts' 'conservation Areas and Section 88 B Instruments']

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Procedural Posture

Class 1 Appeal Concerning a Modification Application Under Section 96(8) of the Environmental Planning and Assessment Act 1979 to Amend Conditions of Development Consent for Subdivision / Decision After Hearing

Legal Issues

  1. 1 ['Whether Condition 65 restricting companion animals, horses and stock on all approved lots should be modified to permit up to two horses and two dogs on each of approved Lots 1 and 2.' 'Whether permitting dogs and horses would create unacceptable or insufficiently assessed environmental risks to the site, Conservation Areas, threatened species habitat and the Coastal Upland Swamp.' 'Whether the rural zoning and existing keeping of animals on Lot 258 justified modification of the condition.']

Ratio Decidendi

The modification was refused because the evidence did not justify removing Condition 65. Allowing dogs and horses on Lots 1 and 2 would introduce an unnecessary and difficult-to-enforce risk to the environmental features of the site and the Conservation Areas, including potential habitat for threatened species such as the Southern Brown Bandicoot and Rosenberg's Goanna. The applicants also provided no adequate evidence that horse droppings would not contribute nutrient run-off affecting the Coastal Upland Swamp, and the approved subdivision had been granted on the basis that stringent environmental controls, including the prohibition on domestic animals, would apply across all approved lots.

Court Disposition

Appeal dismissed; modification application refused.

Orders

  • ['The appeal is dismissed.' 'Modification application to amend conditions of development consent 2016/0556 associated with the subdivision at 145-147 Booralie Road, Duffys Forest is refused.' 'The exhibits, except Exhibits A, B, C, D and 2, are returned.']