McCloy Project Management Pty Ltd v Lismore City Council [2023] NSWLEC 1371

Land and Environment Court New South Wales

Medium Neutral Citation: McCloy Project Management Pty Ltd v Lismore City Council [2023] NSWLEC 1371 Hearing dates: 28, 29, 30 March and 16 May 2023 Date of orders: 14 July 2023 Decision date: 14 July 2023 Jurisdiction: Class 1 Before: Chilcott C Decision: The Court orders (1) The Applicant is ordered to pay the Respondent's costs thrown away in dealing with the Applicant's amended plans and further documentation in the appeal, as agreed or assessed, pursuant to the provisions of s 8.15(3) of the Environmental Planning and Assessment Act 1979; (2) The appeal is dismissed; (3) The Applicant's development application No. 2.2021.262.1 seeking consent for the subdivision of land to create 196 residential lots, along with one residual open space lot and associated roads, bulk earthworks, essential services (water, sewer, power and telecommunications), stormwater management facilities, landscaping and environmental rehabilitation works, is determined by way of refusal. (4) The exhibits are returned, with the exception of exhibits A, B, C and 2. Catchwords: DEVELOPMENT APPLICATION – proposed subdivision of land – whether proposed development would have serious and irreversible impacts on threatened species - whether impacts on koala habitat and koala food trees are acceptable – whether other impacts on biodiversity, including trees, are acceptable – whether stormwater discharges to environmental lands are acceptable. Legislation Cited: Biodiversity Conservation Act 2016, Pts 6, 7, ss 1.3, 1.5, 6.5, 7.2, 7.3, 7.5, 7.7, 7.13, 7.16 Biodiversity Conservation Regulation 2017, cll 1.4, 6.7 Environmental Planning and Assessment Act 1979, Div 4, Pts 4, 7, ss 1.7, 4.15, 4.16, 8.7, 8.15 Lismore Local Environmental Plan 2012, cll 2.3, 4.1, 6.9 State Environmental Planning Policy (Biodiversity and Conservation) 2021, Chs 3, 4, Sch 2, ss 4.8, 4.17 State Environmental Planning Policy (Koala Habitat Protection) 2020 State Environmental Planning Policy (Koala Habitat Protection) 2021 State Environmental Planning Policy (Resilience and Hazards) 2021, s 4.6 Cases Cited: BGP Properties Pty Limited v Lake Macquarie City Council (2004) 138 LGERA 237; [2004] NSWLEC 399 Visionary Investment Group Pty Ltd v Wollongong City Council [2019] NSWLEC 1234 Grampian Regional Council v Secretary of State for Scotland and City of Aberdeen District Council 1984 SC (HL) 58 Texts Cited: Lismore City Council, Comprehensive Koala Plan of Management for south-east Lismore, 2011 (v 1.1) Lismore Community Engagement Strategy 2019 Lismore Development Control Plan 2013 NSW Department of Planning, Industry and Environment, Biodiversity Assessment Method, 2020 Category: Principal judgment Parties: McCloy Project Management Pty Ltd (Applicant) Lismore City Council (Respondent) Representation: Counsel: P Tomasetti SC (Applicant) A Seton (Solicitor) (Respondent)