IRON GATES PTY LTD v OSHLACK and ANOR [1998] NSWCA 111

IRON GATES PTY LTD v OSHLACK SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

GLEESON CJ, PRIESTLY and BEAZLEY JJA 17 and 18 December 1997, 5 February 1998

[1998] NSWCA 111

ENVIRONMENTAL LAW — _ ENVIRONMENTAL PLANNING AND ASSESSMENTS ACT 1976, s76 — NATIONAL PARKS AND WILDLIFE ACT 1974 — development, allegedly carried out in breach of conditions of development consent and in breach of National Parks and Wildlife Act — primary judge's findings as to extent and severity of breaches challenged — HELD — no successful challenge made to finding of primary judge.

Gleeson CJ This is an appeal from a decision of the Land and Environment Court. Some of the issues in the case were decided at first instance by Stein J. The remaining issues were decided by Pearlman J, the Chief Judge of the Land and Environment Court. Both Stein J and Pearlman J made orders which are the subject of the appeal, but it is the reasons for judgment of Stein J, not those of Pearlman J, which have been the focus of argument.

The appellant is a land developer. In pursuance, or purported pursuance, of a development consent granted by the second respondent, Richmond River Shire Council, the appellant carried out development in the form of road construction, earthworks, and extensive clearing, in connection with a subdivision of an area of approximately 40 hectares near Evans Head in northern New South Wales.

The development was highly contentious because of the environmentally sensitive nature of the land. By the time the matter came for hearing before Stein J, a substantial part of the proposed development had been carried out. The first respondent alleged, and Stein J found, that the work had been carried out in contravention of s76(2) of the Environmental Planning and Assessment Act 1979, and in breach of certain conditions of the development consent. It was further contended, and held by Stein J, that the appellant had caused damage to the habitat of threatened species in contravention of s118D of the National Parks and Wildlife Act 1974.