Statewide Planning Pty Ltd v Blacktown City Council [2019] NSWLEC 1397

Statewide Planning Pty Ltd v Blacktown City Council [2019] NSWLEC 1397

The statutory precondition in cl 7.2(4) of BLEP 2015—that the development avoids, minimises or mitigates significant adverse environmental impact—was not satisfied. The majority of CPW would be cleared for development, while the proposed mitigation through a Conservation Management Plan for the remaining E2 land was uncertain as to long-term effectiveness, monitoring, and enforceability. Alternatives and offset options could not be properly assessed due to transitional legislative provisions between the Threatened Species Conservation Act and Biodiversity Conservation Act. Thus, the consent authority had no power to grant consent and the appeal must be dismissed.

Jurisdiction
Australia
Judgment Date
30 August 2019
Procedural Posture
Appeal (class 1 Jurisdiction) / Post Hearing, Final Judgment and Orders
Outcome
Appeal dismissed; proposed development refused.
Legal Topics
['development Applications' 'endangered Ecological Communities' 'biodiversity Conservation' 'subdivision of Land' 'transitional Statutory Regimes' 'mitigation and Offsetting' 'conservation Management Plans']
['environmental Law' 'planning and Development'] ['development Applications' 'endangered Ecological Communities' 'biodiversity Conservation' 'subdivision of Land' 'transitional Statutory Regimes' 'mitigation and Offsetting' 'conservation Management Plans']

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Procedural Posture

Appeal (class 1 Jurisdiction) / Post Hearing, Final Judgment and Orders

Legal Issues

  1. 1 ['Whether the proposal complies with cl 7.2 of Blacktown Local Environmental Plan 2015 in relation to maintenance of terrestrial biodiversity' "Whether the proposed development's environmental impacts on Cumberland Plain Woodland (CPW) are adequately avoided, minimised or mitigated to satisfy the jurisdictional test for consent" 'Whether the transitional regulatory regime permits use of offsetting schemes under either repealed or current biodiversity legislation' 'Adequacy and enforceability of the proposed Conservation Management Plan as mitigation']

Ratio Decidendi

The statutory precondition in cl 7.2(4) of BLEP 2015—that the development avoids, minimises or mitigates significant adverse environmental impact—was not satisfied. The majority of CPW would be cleared for development, while the proposed mitigation through a Conservation Management Plan for the remaining E2 land was uncertain as to long-term effectiveness, monitoring, and enforceability. Alternatives and offset options could not be properly assessed due to transitional legislative provisions between the Threatened Species Conservation Act and Biodiversity Conservation Act. Thus, the consent authority had no power to grant consent and the appeal must be dismissed.

Court Disposition

Appeal dismissed; proposed development refused.

Orders

  • ['Leave granted for the Applicant to rely on the amended plans in Exhibit D.' 'The appeal is dismissed.' 'Development Application No. DA 16-03483 for Torrens title subdivision to create 30 residential lots, 1 residue lot for future development, 1 residue lot for public open space, the construction of 30 dwelling...