Gales Holdings Pty Limited v Tweed Shire Council [2008] NSWLEC 209

Land and Environment Court of New South Wales

CITATION : Gales Holdings Pty Limited v Tweed Shire Council [2008] NSWLEC 209

APPLICANT Gales Holdings Pty Limited PARTIES : RESPONDENT Tweed Shire Council

FILE NUMBER(S) : 10264 of 2005

CORAM: Preston CJ

KEY ISSUES: Appeal :- filling of land in preparation for residential subdivision - loss of vegetation - whether vegetation part of endangered ecological communities - whether adequate offsets

LEGISLATION CITED: Environmental Planning and Assessment Act 1979 s 97 Threatened Species Conservation Act 1995 s 4, Sch 1 Pt 3

CASES CITED: Gales Holdings Pty Limtied v Tweed Shire Council [2006] NSWLEC 85 Gales Holdings Pty Limited v Tweed Shire Council [2006] NSWLEC 212

DATES OF HEARING: 31 March 2008, 1, 2, 3, 4, 7, 8, 11, 16 and 21 April 2008 (conditions filed)

DATE OF JUDGMENT: 14 July 2008

APPLICANT Mr T Robertson SC with Mr P Larkin SOLICITORS Woolf Associates LEGAL REPRESENTATIVES: RESPONDENT Ms S Duggan (barrister) SOLICITORS Stacks/Northern Rivers

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

PRESTON CJ

14 JULY 2008

10264 OF 2005

GALES HOLDINGS PTY LIMITED V TWEED SHIRE COUNCIL

JUDGMENT

Introduction 1 HIS HONOUR: Gales Holdings Pty Limited (Gales) has lodged a development application to fill certain low lying land north and south of Turnock Street, Kingscliff on the far north coast of New South Wales for the purpose of preparing the land primarily for future urban residential sub-division development. A temporary haul road is also proposed to transport fill to the site. 2 The land to be filled is currently vegetated with a variety of native vegetation and some exotics. The proposed filling necessarily would result in the loss of that vegetation. Part of the land is also habitat for an endangered species of animal, the Wallum Froglet. A substantial part of this habitat is now proposed to be retained in an unfilled and enhanced state. 3 Gales has appealed to this Court under s 97 of the Environmental Planning and Assessment Act 1979 against the Council's refusal of the development application. The appeal has been the subject of a preliminary determination on 28 April 2006 where the Court held that the development application needed to be accompanied by a Species Impact Statement on the basis that the proposed fill and haul road development was likely to significantly impact the Wallum Froglet: see Gales Holdings Pty Limited v Tweed Shire Council [2006] NSWLEC 212. 4 Subsequently, Gales amended its development application, principally so as to reduce the extent of filling and its impacts on the habitat of the Wallum Froglet. I granted leave to Gales to amend its development application as described in the Amended Statement of Environmental Effects (which became Exhibit A) and the amended set of plans (Exhibit B). 5 The development application was further amended through the course of the hearing including in relation to the location and design of the proposed conveyor and haul road, the water quality treatment system, construction noise management plan, and Wallum Froglet management plan (Exhibit T). The design of the Wallum Froglet Habitat Area was also revised (Exhibit M). 6 The issues in the appeal, by the end of the hearing, essentially related to the impacts the amended development might have on the native vegetation on the land that would be filled. Other issues, including the impact on the Wallum Froglet, were resolved by further amendments to the retained habitat area and the proposed conditions of consent. 7 The issues remaining to be resolved can be summarised as follows: