Nambucca Valley Conservation Association v Nambucca Shire Council [2010] NSWLEC 38

Land and Environment Court of New South Wales

CITATION : Nambucca Valley Conservation Association v Nambucca Shire Council [2010] NSWLEC 38

APPLICANT: Nambucca Valley Conservation Association Inc.

PARTIES : FIRST RESPONDENT: Nambucca Shire Council

SECOND RESPONDENT: Paul Joseph

FILE NUMBER(S) : 41213 of 2008

CORAM: Biscoe J

KEY ISSUES: JUDICIAL REVIEW :- validity of development consent for rural-residential subdivision – whether council refused consent or, if so, whether council officer had authority to refuse – whether species impact statement required – jurisdictional fact whether development likely to significantly affect threatened species, populations or ecological communities – whether environmental management plan or draft condition requiring same had to be before council – whether council failed to consider mandatory relevant considerations – whether council impermissibly deferred matters for later assessment – whether amended development application should have been advertised – whether legislative intention that non-compliance with legislation should result in invalidity – whether instead of declaration or determination of invalidity an order should be made under s 25B Land and Environment Court Act 1979

Evidence Act 1995, s 79 Environmental Planning and Assessment Act 1979, ss 5A, 78A(8)(b), 79A, 79C, 80, 80A, 81 Environmental Planning and Assessment Regulation 2000, cll 5, 86, 87, 88, 89, 90, 91, 286C(2)(a) Land and Environment Court Act 1979, s 25B Land and Environment Court Rules 2007, r 4.2 LEGISLATION CITED: Nambucca Development Control Plan No 12 – Advertising Development 2000 Nambucca Development Control Plan No 12 – Notification and Advertising 2004 Nambucca Local Environmental Plan 1995 Native Vegetation Act 2003 State Environmental Planning Policy No 44 – Koala Habitat Protection Threatened Species Conservation Act 1995