Elachi v Shoalhaven City Council [2014] NSWLEC 1126

Land and Environment Court New South Wales

Medium Neutral Citation: Elachi v Shoalhaven City Council [2014] NSWLEC 1126 Hearing dates: 8-9 April 2014 Decision date: 27 June 2014 Jurisdiction: Class 1 Before: Fakes C Decision: The appeal is dismissed. Catchwords: DEVELOPMENT APPLICATION: 1964 holding; Bangalay Sand Forest EEC; Is an SIS required Legislation Cited: Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 Rural Fires Act 1997 Threatened Species Conservation Act 1995 Environmental Planning and Assessment Regulation 2000 State Environmental Planning Policy No. 71 Jervis Bay Regional Environmental Plan1996 Shoalhaven Local Environmental Plan 1985 Cases Cited: BGP Properties Pty Ltd v Lake Macquarie City Council [2004] NSWLEC 79 Newcastle & Hunter Valley Speleological Society Inc v Upper Hunter Shire Council and Stoneco Pty Limited [2010] NSWLEC 48 Timbarra Protection Coalition Inc v Ross Mining NL & Ors [1999] NSWCA 8 Category: Principal judgment Parties: Charbel Elachi (Applicant) Shoalhaven City Council (Respondent) Representation: Applicant: Mr G Gleeson (Solicitor) Respondent: Mr A Seton (Solicitor) Applicant: RMB Lawyers with Morton & Harris Respondent: Marsdens Law Group File Number(s): 11039 of 2013

Judgment 1COMMISSIONER: Callala Beach is a small settlement on Jervis Bay about 20 km from Nowra. Like many other villages and towns along the south coast, it is a pocket of residential development carved out of the bush. Along the northern end of Callala Beach is a strip of heavily vegetated remnant bushland between the dunes and Griffin Street. 2Significantly, the majority of the remnant vegetation is identified and mapped as Bangalay Sand Forest (BSF). In 2005, the Scientific Committee established under the Threatened Species Conservation Act 1995 (TSC Act) made a Final Determination and listed BSF as an Endangered Ecological Community (EEC). 3Most of this remnant strip is owned by Shoalhaven City Council however three lots have been in private ownership since about 1923. 4The present owner of those lots has lodged a development application with Shoalhaven City Council seeking permission to construct a two-storey dwelling and ancillary structures including a double garage, pool and cabana. The proposed development also includes associated earthworks, landscaping, construction of a driveway, stormwater and drainage infrastructure, fencing and the clearing of vegetation, in particular BSF EEC. 5As the statutory period for assessment of the development application has lapsed, the applicant appeals Shoalhaven City Council's deemed refusal of Development Application DA 13/1500 for the proposed works under s 97(1) of the Environmental Planning and Assessment Act 1979 (the EPA Act).