Brunsdon v The Council of the City of Wagga Wagga

Brunsdon v The Council of the City of Wagga Wagga - [2003] NSWLEC 168 - NSWLEC 2003 case summary — Zoe

CITATION : Brunsdon v The Council of the City of Wagga Wagga [2003] NSWLEC 168 APPLICANT Colin Brunsdon PARTIES : RESPONDENT The Council of the City of Wagga Wagga FILE NUMBER(S) : 10960 of 2002 CORAM: Cowdroy J KEY ISSUES: Development Application :- Piggery - designated development - integrated development - environmental impact - precautionary principle - impact of odour - impact of spreading of piggery waste - impact on watercourses and groundwater - impact of traffic - deferred commencement conditions Environmental Planning and Assessment Act 1979, s 77A, s 79C, s 91, s 94 Environmental Planning and Assessment Regulation 2000, cl 72, Sch 3 cl 21(3)(b) Land and Environment Court Act 1979, s 39(6A)(c) LEGISLATION CITED: Protection of the Environment Operations Act 1997 Wagga Wagga Rural Development Control Plan 2002 Wagga Wagga Rural Local Environmental Plan 1991 Wagga Wagga Rural Local Environmental Plan 1991 (Amendment No. 12) Greenpeace Australia v Redbank Power Company Pty Ltd and Singleton Council (1995) 86 LGERA 143; Leatch v National Parks and Wildlife Service and Shoalhaven City Council (1993) 81 LGERA 270; Mison and Others v Randwick Municipal Council and Others (1991) 23 NSWLR 734; CASES CITED: Nicholls v Director-General National Parks and Wildlife and Others (1994) 84 LGERA 397; Proprietors of SP 13318 and 13555 v Lavender View Regency Pty Ltd and North Sydney Council (1997) 97 LGERA 337; Schaffer Corporation Ltd v Hawkesbury City Council (1992) 77 LGRA 21; Scott and Others v Wollongong City Council and Another (1992) 75 LGRA 112; Vertical Telecoms Pty Ltd v Hornsby Shire Council [2000] NSWLEC 172 DATES OF HEARING: 30/06/2003; 01/07/2003; 02/07/2003; 03/07/2003; 04/07/2003; 07/07/2003; 22/10/2003; 23/10/2003; 24/10/2003 DATE OF JUDGMENT: 12/19/2003

Principles on ecological sustainability 111 The council submits that the application of the principles of ecological sustainability as provided in Sch 1 of the LEP, would result in the Court rejecting the applicant's development proposal. The Court has been referred to Stein J in Leatch at p 282 where His Honour referred to the precautionary principle as "a statement of commonsense" and continued as follows:- It is directed towards the prevention of serious or irreversible harm to the environment in situations of scientific uncertainty. Its premise is that where uncertainty or ignorance exists concerning the nature or scope of environmental harm (whether this follows from policies, decisions or activities), decision-makers should be cautious. 112 The principle in Leatch was subsequently applied by Talbot J in Nicholls v Director-General National Parks and Wildlife and Others (1994) 84 LGERA 397, by Pearlman CJ in Greenpeace Australia v Redbank Power Company Pty Ltd and Singleton Council (1995) 86 LGERA 143 and by Sheahan J in Vertical Telecoms Pty Ltd v Hornsby Shire Council [2000] NSWLEC 172. In such cases the council submits the interpretation and application of the precautionary principle was based upon the principle as it is stated in the Protection of the Environment Operations Act 1991. The council contends that precautionary principle in such Act is similar except the definition of the principle Sch 1 of the LEP adds the following sentence:- The principle requires decision-making to give the environment the benefit of the doubt.

(1995) 86 LGERA 143

(1993) 81 LGERA 270

(1991) 23 NSWLR 734

(1994) 84 LGERA 397

(1997) 97 LGERA 337

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