Statewide Planning Pty Ltd v Blacktown City Council [2022] NSWLEC 1024

Statewide Planning Pty Ltd v Blacktown City Council [2022] NSWLEC 1024

The Court found that the proposed development would have a serious and irreversible impact on Cumberland Plain Woodland by further reducing its patch size, contributing significantly to its risk of extinction in the context of rapid decline and small population size, and insufficient avoidance, minimisation, and mitigation measures were demonstrated, with mitigation plans lacking specificity and perpetuity. As a result, the statutory preconditions for consent under the Biodiversity Conservation Act and the Local Environmental Plan were not met, and the Court had no power to grant approval, requiring refusal of the development application.

Jurisdiction
Australia
Judgment Date
21 January 2022
Procedural Posture
Appeal Against Deemed Refusal of Development Application / Final Determination and Orders
Outcome
Appeal dismissed; development application refused
Legal Topics
['development Application' 'subdivision' 'biodiversity Conservation' 'serious and Irreversible Impact' 'terrestrial Biodiversity' 'environmental Planning' 'local Environmental Plan']
['environmental Law' 'planning Law'] ['development Application' 'subdivision' 'biodiversity Conservation' 'serious and Irreversible Impact' 'terrestrial Biodiversity' 'environmental Planning' 'local Environmental Plan']

Case Brief

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Procedural Posture

Appeal Against Deemed Refusal of Development Application / Final Determination and Orders

Legal Issues

  1. 1 ['Does the proposed development have a serious and irreversible impact on Cumberland Plain Woodland?' 'Has the development taken appropriate and reasonable measures to avoid and minimise impact on Cumberland Plain Woodland?' 'Is the precondition under clause 7.2 (Terrestrial Biodiversity) in Blacktown Local Environmental Plan 2015 satisfied?' 'Is the site suitable for the proposed development?']

Ratio Decidendi

The Court found that the proposed development would have a serious and irreversible impact on Cumberland Plain Woodland by further reducing its patch size, contributing significantly to its risk of extinction in the context of rapid decline and small population size, and insufficient avoidance, minimisation, and mitigation measures were demonstrated, with mitigation plans lacking specificity and perpetuity. As a result, the statutory preconditions for consent under the Biodiversity Conservation Act and the Local Environmental Plan were not met, and the Court had no power to grant approval, requiring refusal of the development application.

Court Disposition

Appeal dismissed; development application refused

Orders

  • ['The appeal is dismissed' 'Development application DA-19-01882 seeking consent for torrens title subdivision, tree removal, earthworks, construction of residential dwellings and ancillary civil works at 35-37 Denis Winston Drive, Doonside (Lot 1268 DP 803528) is determined by way of refusal' 'Exhibits are returned...