Alam v Wollongong City Council [2016] NSWLEC 1250

Alam v Wollongong City Council [2016] NSWLEC 1250

The proposed development cannot be approved because clause 7.2 of the Wollongong Local Environmental Plan 2009 is not satisfied: the evidence does not establish, with sufficient detail or certainty, effective ameliorative measures for the impacts on biodiversity, in particular the Southern Sydney sheltered forest endangered ecological community and the Eastern Pygmy Possum, due to deficiencies in the Vegetation Management Plan and unresolved impacts from asset protection zone clearing required for bushfire protection. As neither avoidance nor sufficient mitigation of environmental impacts is demonstrated, consent must be refused.

Jurisdiction
Australia
Judgment Date
17 June 2016
Procedural Posture
Appeal / Final Determination
Outcome
Appeal dismissed. Development application refused.
Legal Topics
['development Application' 'environmental Impact' 'threatened Species' 'local Environmental Plan' 'asset Protection Zone' 'vegetation Management Plan' 'species Impact Statement' 'bushfire Prone Land']
['planning and Environment Law'] ['development Application' 'environmental Impact' 'threatened Species' 'local Environmental Plan' 'asset Protection Zone' 'vegetation Management Plan' 'species Impact Statement' 'bushfire Prone Land']

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Procedural Posture

Appeal / Final Determination

Legal Issues

  1. 1 ['Whether the proposed development complies with clause 7.2 of the Wollongong Local Environmental Plan 2009 regarding natural resource sensitivity—biodiversity' 'Whether sufficient ameliorative measures are in place to mitigate environmental impacts, in particular on the SSSF Endangered Ecological Community and the Eastern Pygmy Possum' 'Whether the proposal is consistent with the objectives of the relevant zoning under both the E3 and E2 zones' 'Whether the lack of a detailed Vegetation Management Plan justifies refusal of consent']

Ratio Decidendi

The proposed development cannot be approved because clause 7.2 of the Wollongong Local Environmental Plan 2009 is not satisfied: the evidence does not establish, with sufficient detail or certainty, effective ameliorative measures for the impacts on biodiversity, in particular the Southern Sydney sheltered forest endangered ecological community and the Eastern Pygmy Possum, due to deficiencies in the Vegetation Management Plan and unresolved impacts from asset protection zone clearing required for bushfire protection. As neither avoidance nor sufficient mitigation of environmental impacts is demonstrated, consent must be refused.

Court Disposition

Appeal dismissed. Development application refused.

Orders

  • ['The appeal is dismissed.' 'The amended development application DA 2014/1198 for an animal boarding establishment at 125 Princes Highway Helensburgh is refused.' 'The exhibits are returned except for exhibits 1, 21 and A.' 'Pursuant to s 97B(2) of the Environmental Planning and Assessment Act 1979 the applicant is...