Land and Environment Court of New South Wales CITATION: Detala Pty Ltd V Byron Shire Council [1999] NSWLEC 278 PARTIES APPLICANT Detala Pty Ltd RESPONDENT Byron Shire Council NUMBER: 10515B of 1994 CORAM: Bignold J KEY ISSUES: Development Consent :- Development consent - · Modification of development consent - deletion of condition of consent - whether modification involves threatened species LEGISLATION CITED: Environmental Planning and Assessment Act 1979 s 96 DATES OF HEARING: 12/10/1999 EX TEMPORE JUDGMENT DATE: 12/10/1999 APPLICANT: Mr W R Davison SC with Mr S Eullotta, Barrister SOLICITORS Bartier Perry LEGAL REPRESENTATIVES: RESPONDENT: Mr T Robertson, Barrister SOLICITORS Wilshire Webb JUDGMENT: IN THE LAND AND Matter No . 10515B of 1999 ENVIRONMENT COURT OF Coram : Bignold J. NEW SOUTH WALES 10 December 1999 DETALA PTY LTD Applicant v BYRON SHIRE COUNCIL Respondent JUDGMENT Bignold J: 1. This is an application pursuant to the EP&A Act s 96 for the Court to modify a development consent granted by an Assessor of the Court on 15 March 1995 (the development consent) for a community title subdivision comprising 15 residential lots of land situate at Byron Bay. 2. By virtue of the Environmental Planning & Assessment Regulation 1994 cl 72, the Court is deemed to be the consent authority for the purpose of determining the application. 3. The Respondent has raised a threshold question which derives from the provisions of the EP&A Act s 96(5) which provides as follows: (5) Threatened species Development consent of the kind referred to in section 79B(3) is not to be modified (except in the case of a minor modification) unless the requirements of section 79B(3)-(7) have been complied with in relation to the proposed modification as if the proposed modification were an application for development consent. 4. For the purpose of resolving the threshold question, the Applicant does not contest the fact that the development consent granted in this case is relevantly " a development consent of the kind referred to in s 79B(3) ". That provision is in the following terms:- (3) Consultation and concurrence—threatened species Development consent cannot be granted for: (a) development on land that is, or is a part of, critical habitat, or (b) development that is likely to significantly affect a threatened species, population, or ecological community, or its habitat, without the concurrence of the Director-General of National Parks and Wildlife or, if a Minister is the consent authority, unless the Minister has consulted with the Minister administering the Threatened Species Conservation Act 1995. 5. Again, for present purposes, it is accepted by the parties that the approved development is " development " described in s 79B(3)(b) . 6. However, the Applicant submits that in the present case, s 96(5) does not require compliance within the requirements of s 79B(3) - (7) because the proposed modification is not such as to carry any relevance or implications for the operation of s 79B(3) - (7). 7. This submission requires an examination of the proposed modification. It proposes to amend condition 23 of the development consent. 8. That condition is in the following terms: No tree to be ringbarked, cut down, lopped, removed or damaged, or caused to be ringbarked, cut down, lopped removed or damaged in contravention of the Tree Preservation Order applicable to the land. Any tree or trees which require removal are to be shown on a plan of adequate scale for the approval of Council's Planning Manager prior to any works commencing. 9. The proposed modification seeks the deletion of the words " for the approval of " and their substitution by the words " submitted to ". 10. On the face of it, the modification appears to be no more than a slight cometic change to a condition which prima facie is founded upon the existence of the Council's Tree Preservation Order (TPO) controlling the removal of trees. 11. However, upon closer analysis, it is apparent that the condition goes beyond a mere reinforcement of any existing obligation created by the TPO because the condition imposes the requirement for approval of the Council's Planning Manager as a condition precedent to the "any works commencing" which I take to be "works" in connection with the carrying out of the approved development, namely the 15 residential lot community title subdivision. 12. At all events, this is the effect which the Applicant appears to have given to the condition (as is reflected in the modification application) and it is the same effect which the Council contends for. 13. This realisation of the true effect of the condition entirely changes the nature of the proposed modification —it becomes a significant change in terms of the recently emerged scientific awareness of the importance of vegetation existing on the development site. 14. Accordingly, if the condition were changed according to the modification proposal, the relevant requirement for Council approval to tree removal would cease to operate as a condition precedent to the commencement of development works on the site. 15. It is the Council's reasonable apprehension that if the condition were amended and if, in consequence, the development works were to commence, the protection of the significant vegetation currently operating by virtue of condition 23 as it stands, will be jeopardised or lost. 16. This potential or likely consequence of the carrying out of development works gives true colour to the nature and effect of the modification and indicates that it is a modification that has very real relevance for the operation of the EP&A Act s 79B(3) - (7). 17. In so concluding, I note that the proposed modification is not a "minor modification" as that expression is defined by the EP&A Act s 96(1). 18. Accordingly, for all the foregoing reasons, I hold that the proposed modification is a modification that falls within the ambit of the EP&A Act s 96(5). Since it is common ground that the concurrence of the Director General of National Parks and Wildlife under the EP&A Act s 79B(3) has not been sought or obtained, s 96(5) operates to deny the power to grant the modification unless the requirements of s 79B(3) have been complied with. 19. Because the Court is determining this application in the capacity of the consent authority, and not by way of appeal, the faculty provided by the Land and Environment Court Act 1979 s 39(6) does not apply so as to enable the Court to determine the application in the absence of the requisite concurrence. 20. Upon the application of the Applicant, the proceedings are adjourned for mention on 16 December 1999 for directions for completion of the hearing. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.