Motorplex (Australia) Pty Limited v Port Stephens Council [2007] NSWLEC 74

Land and Environment Court of New South Wales

CITATION : Motorplex (Australia) Pty Limited v Port Stephens Council [2007] NSWLEC 74 This decision has been amended. Please see the end of the judgment for a list of the amendments.

APPLICANT Motorplex (Australia) Pty Limited PARTIES : RESPONDENT Port Stephens Council

FILE NUMBER(S) : 11328 of 2004

CORAM: Preston CJ

KEY ISSUES: Development Application :- Species Impact Statement - whether required - whether endangered ecological communitites on development site - preliminary question

LEGISLATION CITED: Threatened Species Conservation Act 1995 (NSW) s 4

CASES CITED: CBD Prestige Holdings Pty Ltd v Lake Macquarie City Council [2005] NSWLEC 367; VAW (Kurri Kurri) Pty Ltd v Scientific Committee (2003) 58 NSWLR 631

DATES OF HEARING: 08/11/2006, 09/11/2006, 21/11/2006, 01/12/2006

DATE OF JUDGMENT: 16 February 2007

APPLICANT Mr J Robson SC with Ms A Pearman SOLICITORS Norman Waterhouse LEGAL REPRESENTATIVES: RESPONDENT Mr P Larkin (barrister) SOLICITORS Sparke Helmore

JUDGMENT:

THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

PRESTON CJ

16 FEBRUARY 2007

11328 OF 2004

MOTORPLEX (AUSTRALIA) PTY LIMITED V PORT STEPHENS COUNCIL

JUDGMENT

1 HIS HONOUR : Motorplex (Australia) Pty Limited operates car racing activities on land at Balickera, 14 kilometres north of Raymond Terrace. The land is described as Lots 1 and 2 in DP 245116 and Lot 3 in DP 787250 and is known as 42-53 Pacific Highway and 105 Italia Road, Balickera. 2 Motorplex wishes to expand its operations to construct a motorsport drag strip, racecourse and spectator facilities. Motorplex lodged a development application with Port Stephens Council. The Council refused the development application. Motorplex appealed to this Court. 3 The Council filed a statement of issues. One of the issues is whether any endangered ecological community listed under the Threatened Species Conservation Act 1995 (NSW) ("the Act") occurs on the land. If one or more endangered ecological communities occur on the land, a species impact statement in relation to such communities needs to be prepared and to accompany the development application. Development consent cannot be granted if a species impact statement is required but has not accompanied the development application. 4 Accordingly, the parties sought, and the Court directed, that preliminary questions in relation to this issue be heard and determined before the balance of the appeal. The preliminary questions are: