Western Sydney Conservation Alliance v Penrith City Council [2011] NSWLEC 244

Western Sydney Conservation Alliance v Penrith City Council [2011] NSWLEC 244

The challenged consents were affected by legal error because the Council was required, through the statutory scheme governing species impact statements and consideration of environmental impacts under the Environmental Planning and Assessment Act 1979 (NSW), to consider the details of the Cumberland Plain Recovery Plan. The species impact statement incorrectly stated that no recovery plan had been prepared for several affected species, or that the plan was still in draft, and the other material before Council did not sufficiently provide the details of the Recovery Plan as it applied to flora and fauna other than Cumberland Plain Woodland. Section 69 of the Threatened Species Conservation...

Jurisdiction
Australia
Judgment Date
16 December 2011
Procedural Posture
Class 4 Judicial Review Proceedings / Principal Judgment
Outcome
The operation of the challenged development consents was suspended in part and the consents were to be validated upon the Council having regard to the details of the Cumberland Plain Recovery Plan; the application was otherwise dismissed and each party was ordered to pay its own costs.
Legal Topics
['development Consent' 'threatened Species' 'recovery Plans' 'species Impact Statement' 'mandatory Relevant Considerations' 'suspension and Validation of Development Consents']
['environmental Law' 'planning Law' 'judicial Review'] ['development Consent' 'threatened Species' 'recovery Plans' 'species Impact Statement' 'mandatory Relevant Considerations' 'suspension and Validation of Development Consents']

Case Brief

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Procedural Posture

Class 4 Judicial Review Proceedings / Principal Judgment

Legal Issues

  1. 1 ["Whether s 69 of the Threatened Species Conservation Act 1995 (NSW) applied to Penrith City Council's determination of development applications under the Environmental Planning and Assessment Act 1979 (NSW)." 'Whether the Council failed to consider or take into account the Cumberland Plain Recovery Plan when determining DA 11/0514, DA 11/0515, DA 11/0516 and DA 11/0517.' 'Whether the Council failed to consider consistency with, and measures to implement, the Recovery Plan.' 'Whether the Council was required to notify the Director-General of departures from the Recovery Plan.' 'Whether relief should be refused, or whether the consents should be suspended and validated under the Land and Environment Court Act 1979 (NSW).']

Ratio Decidendi

The challenged consents were affected by legal error because the Council was required, through the statutory scheme governing species impact statements and consideration of environmental impacts under the Environmental Planning and Assessment Act 1979 (NSW), to consider the details of the Cumberland Plain Recovery Plan. The species impact statement incorrectly stated that no recovery plan had been prepared for several affected species, or that the plan was still in draft, and the other material before Council did not sufficiently provide the details of the Recovery Plan as it applied to flora and fauna other than Cumberland Plain Woodland. Section 69 of the Threatened Species Conservation...

Court Disposition

The operation of the challenged development consents was suspended in part and the consents were to be validated upon the Council having regard to the details of the Cumberland Plain Recovery Plan; the application was otherwise dismissed and each party was ordered to pay its own costs.

Orders

  • ['That the operation of the consents to DA 11/0514, DA 11/0515, DA 11/0516 and DA 11/0517 be suspended in part.' 'The operation of the consents not be suspended to the extent necessary to carry out such development as is reflected in the undertaking of the second and third respondents noted in paragraph 7 of these...