Nambucca Valley Conservation Association v Nambucca Shire Council

Nambucca Valley Conservation Association v Nambucca Shire Council - [2010] NSWLEC 38 - NSWLEC 2010 case summary — Zoe

[7]

46 Condition 1 provided that the development be implemented generally in accordance with the plan of subdivision, the Darkheart KPoM of December 2007, the Darkheart ecological assessment report of September 2005, and the neighbourhood management plan: see [22] and [38] above. 47 The council report, by the council's Director Environment and Planning, noted that the determination was of the application lodged in October 2003. It said that only three submissions, which it annexed, were made on the "amended application". It did not include any reference to or annex submissions made with respect to the original application and earlier amendments. The council report attached conditions on which it recommended approval should be given. The council report said that the Department of Planning's requirement for an EMP which details the planting and regeneration program and uses a compensatory planting of koala food trees at a ratio of 10:1 rather than 3:1 (proposed by the proponent) "have been incorporated as conditions of consent". In fact, the EMP requirements did not appear in the conditions attached to the council report although they appeared in the council's later notice of determination. 48 On 28 August 2008 the council issued to the proponent a Notice of Determination by way of granting conditional consent. GROUND 1: REFUSAL 49 The first ground of challenge to the validity of the development consent is that on or about 8 July 2004 the development application was refused actually or constructively, and that all else done thereafter was inconsistent with the refusal. The council says that there was no refusal and, in any case, the council officer who allegedly refused it had no authority to do so. Refusal 50 On 7 July 2004 Mr Hannavy, the council's Manager Planning and Assessment, wrote the following file note concerning his discussion with the proponent: "I spoke to Ken today re message I left for him last week that DA was to be refused. He advised that he had been waiting for revised flora and fauna report from Wayne Brennan, since May but had still not received it.

[22]

(1) Subject to subsections (2) and (3), if a determination is made by the granting of consent, the consent becomes effective and operates from: (a) except as provided in paragraph (b) - the date that is endorsed on the notice given to the applicant in accordance with section 81 (1) of the determination of the development application or under section 82A (7)…" 56 For the purposes of s 81(1), cl 100 of the Environmental Planning and Assessment Regulation 2000 (EPA Regulation) prescribes much information that a notice of determination of a development application must contain, including the consent authority's reasons for a refusal. Clause 102(1) mandates that a notice under s 81(1) must be sent to the applicant within 14 days of the date of the determination of the application. Clause 102(3) provides that failure to send within the 14 day period does not affect the validity of the notice or any development consent to which it relates. That provision validates a late notice of determination but does not dispense with the requirement to send the notice: Townsend v Evans Shire Council [2000] NSWLEC 163, 109 LGERA 336. 57 The statutory provisions show that: (a) there is no effective determination of a development application until the prescribed statutory notice of determination is sent to the applicant: Hamod v Minister for Urban Affairs and Planning [2009] NSWLEC 24 at [15] (Lloyd J); Townsend v Evans Shire Council (2000) NSWLEC 163, 109 LGERA 336, (Lloyd J); Shanahan v Strathfield Municipal Council [1973] 2 NSWLR 740 at 744 (Street CJ in Eq); Ex parte Renouf [1924] 24 SR (NSW) 463 at 467 (Street ACJ, James J concurring); Panagopoulos v Willoughby City Council (1992) 78 LGERA 270 at 272-273 (Bignold J); (b) a council can revoke determination of a development application before it is formally communicated to the applicant: Townsend at 341-342; Shanahan at 742-744; Renouf at 466-467. It may be open to argument whether the power to revoke continues until the applicant has acted on the faith of the approval after formal communication; Shanahan at 742. (c) in contrast, it has been held that determination of an application to modify a development consent may be notified to the applicant orally because there are no statutory notice requirements in such a case: Panagopoulos . 58 The application of these principles is illustrated in Townsend. There the council resolved to grant consent to a development application. At the conclusion of the meeting the mayor in effect told the applicants, who were present at the meeting, that consent had been granted. A week later, the applicants contacted the council staff to obtain the notice of determination, but were told that it would not be available because a rescission notice was coming in. Subsequently the council rescinded the consent resolution and notified the applicants. It was held that the rescission notice was valid. 59 Under the statutory scheme, the sending of a statutory notice of determination of a development application to the proponent is essential. In the present case it was not sent to the proponent until 2008, after the amended application was determined by consent. 60 The high point of the applicant's case on ground 1 is that on 8 July 2004 Mr Meyers told the proponent that he had signed a refusal notice but had not sent it as he had to change a date. The proponent immediately successfully dissuaded him from sending it by indicating that overdue information would soon be provided. The proponent and the council proceeded then and for years thereafter on the basis that the application had not been determined until 2008 when consent was granted.

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71 Further, instruments of sub-delegation from the General Manager issued in 2002 delegated authority to "sign" notices of determination for development consent to the Director Environment and Community Planning (Mr Meyers at the relevant time) and the Manager Planning and Assessment (Mr Hannavy at the relevant time). These instruments did not empower them to determine development applications. Mr Meyers may have had authority to sign "for" Mr Hannavy. However, they only had power to sign if a determination had been made. As no determination had been made under s 80(1) by the council or its delegate, the General Manager, in my opinion neither Mr Meyers nor Mr Hannavy had power to sign the notice of determination. 72 For these reasons, ground 1 fails. GROUND 2(a): SPECIES IMPACT STATEMENT 73 Ground 2(a) is that the development consent is invalid because the council did not have before it a species impact statement, as required by s 78A(8)(b) of the EPA Act. 74 The applicant contends that s 78A(8)(b) of the EPA Act applied because the development application was in respect of development that was likely to significantly affect the following threatened species or ecological communities: (a) two endangered ecological communities ( EEC ): River-Flat Eucalypt Forest on Coastal Floodplains of the New South Wales North Coast, Sydney Basin and South East Corner Bioregions; and Subtropical Coastal Floodplain Forest of the New South Wales North Coast Bioregion; and (b) a threatened species, the koala, or its habitat. 75 The applicant's case is supported by the evidence of its expert ecologist, Dr Stephen Phillips, but is contrary to the evidence of the proponent's expert ecologist, Mr Jason Berrigan, who prepared the 2005 and 2007 Darkheart KPoMs and the 2005 Darkheart ecological impact assessment: see [22] and [38] above. In closing submissions, the applicant abandoned a contention, based on Dr Phillips' evidence, that a species impact statement was also required because of the development's likely affect on a certain bat. 76 This contest is between the applicant and the proponent. Mindful of what it says is its proper role in the proceedings, the council confines its submissions to its powers and procedures and no longer pleads to, nor makes any submission in relation to, this ground: The Queen v Australian Broadcasting Tribunal; Ex parte Hardiman [1980] HCA 13, 144 CLR 13. The legislative scheme 77 Section 78A(8)(b) provides: " 78A Application

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(b) if the application is in respect of development on land that is, or is a part of, critical habitat or is likely to significantly affect threatened species, populations or ecological communities, or their habitats - a species impact statement prepared in accordance with Division 2 of Part 6 of the Threatened Species Conservation Act 1995." 78 The reference in s 78A(8)(b) of the EPA Act to "development…that is…or is likely to significantly affect threatened species, populations or ecological communities, or their habitats" is a jurisdictional fact in the sense that if the court decides, on the evidence before it, that that was the situation, and if the development application was made without an accompanying species impact statement, then the power to grant development consent was not enlivened: Gedeon v Commissioner of the New South Wales Crime Commission [2008] HCA 43, 236 CLR 120 at [43];Timbarra Protection Coalition Inc v Ross Mining NL [1999] NSWCA 8, 46 NSWLR 55 at [34], [94]; Woolworths Ltd v Pallas Newco Pty Ltd [2004] NSWCA 422, 61 NSWLR 707 at [105], [188]; Corowa v Geographe Point Pty Ltd [2007] NSWLEC 121, 154 LGERA 117 at [35], [51] (Jagot J). In this sense, the Court is the judicial ecologist. 79 Section 4(1) of the EPA Act defines terms appearing in s 78A(8)(b) by reference to definitions in the Threatened Species Conservation Act 1995 (TSC Act). Section 4(1) of the TSC Act defines "threatened species, populations and ecological communities" to mean species, populations and ecological communities specified in Schedules 1, 1A and 2 of the TSC Act. "Habitat" means "an area or areas occupied, or periodically or occasionally occupied, by a species, population or ecological community and includes any biotic or abiotic component". Schedules 1, 1A and 2 of the TSC Act categorise threatened species, populations and ecological communities as "endangered", "critically endangered" or "vulnerable". A threatened species, population or ecological community is eligible to be listed as "endangered" if, in the opinion of the Scientific Committee constituted under the TSC Act, it is facing a very high risk of extinction in New South Wales in the near future, as determined in accordance with criteria in the regulations: ss 10(3), 12(2) TSC Act. The objects of the TSC Act are stated in s 3 as follows: "(a) to conserve biological diversity and promote ecologically sustainable development, and (b) to prevent the extinction and promote the recovery of threatened species, populations and ecological communities, and (c) to protect the critical habitat of those threatened species, populations and ecological communities that are endangered, and (d) to eliminate or manage certain processes that threaten the survival or evolutionary development of threatened species, populations and ecological communities, and (e) to ensure that the impact of any action affecting threatened species, populations and ecological communities is properly assessed, and (f) to encourage the conservation of threatened species, populations and ecological communities by the adoption of measures involving co-operative management." 80 Section 78A(8)(b) operates at all times between lodgement and determination of the development application. If the consequence of amending the application is to bring the development within or outside s 78A(8)(b), the section operates in its terms on and from the amendment. Any ameliorative measures proposed in the application as determined are to be taken into account in deciding that question: Corowa at [50], [56]. 81 In the present case, the "development" of which s 78A(8)(b) speaks was for a subdivision into five rural-residential lots of a little over one hectare each and a community title lot of about 7 hectares, together with an access road. 82 In s 78A(8)(b), "likely" means "a real chance or possibility", whereas "significantly" means "important", "notable", "weighty" or "more than ordinary": Corowa at [52]; Plumb v Penrith City Council [2002] NSWLEC 223 at [22] (Pearlman J); B T Goldsmith Planning Services Pty Ltd v Blacktown City Council [2005] NSWLEC 210 at [59] (Pain J); Oshlack v Richmond River Council (1993) 82 LGERA 222 (Stein J). 83 In deciding whether the development is likely to significantly affect a threatened species or ecological community, it is mandatory to take into account the matters listed in s 5A of the EPA Act. However, the Court is not limited to those matters nor does a positive finding on any matter in s 5A require a finding that a species impact statement was required: Corowa at [52]; Plumb at [36] - [37]. In the present case, there is an issue as to whether the previous version of s 5A or the current version, which commenced on 31 October 2005, applies in the Court's assessment of whether a species impact statement was required. 84 The previous s 5A, with its eight part test, was as follows: " 5A Significant effect on threatened species, populations or ecological communities, or their habitats

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(1) For the purposes of this Act and, in particular, in the administration of sections 78A, 79B, 79C, 111 and 112, the following must be taken into account in deciding whether there is likely to be a significant effect on threatened species, populations or ecological communities, or their habitats: (a) each of the factors listed in subsection (2), (b) any assessment guidelines. (2) The following factors must be taken into account in making a determination under this section: (a) in the case of a threatened species, whether the action proposed is likely to have an adverse effect on the life cycle of the species such that a viable local population of the species is likely to be placed at risk of extinction, (b) in the case of an endangered population, whether the action proposed is likely to have an adverse effect on the life cycle of the species that constitutes the endangered population such that a viable local population of the species is likely to be placed at risk of extinction, (c) in the case of an endangered ecological community or critically endangered ecological community, whether the action proposed: (i) is likely to have an adverse effect on the extent of the ecological community such that its local occurrence is likely to be placed at risk of extinction, or (ii) is likely to substantially and adversely modify the composition of the ecological community such that its local occurrence is likely to be placed at risk of extinction, (d) in relation to the habitat of a threatened species, population or ecological community: (i) the extent to which habitat is likely to be removed or modified as a result of the action proposed, and (ii) whether an area of habitat is likely to become fragmented or isolated from other areas of habitat as a result of the proposed action, and (iii) the importance of the habitat to be removed, modified, fragmented or isolated to the long-term survival of the species, population or ecological community in the locality, (e) whether the action proposed is likely to have an adverse effect on critical habitat (either directly or indirectly), (f) whether the action proposed is consistent with the objectives or actions of a recovery plan or threat abatement plan, (g) whether the action proposed constitutes or is part of a key threatening process or is likely to result in the operation of, or increase the impact of, a key threatening process."

[37]

(Emphasis added in s 5A(2)(b) and (c)) 86 I have emphasised the word "regional" in the previous s 5A(c) and the word "local" in the current s 5A(2)(b) and (c) because they suggest a change to a more rigorous, local test. The questions 87 The applicant and the proponent agree that the following questions arise in this case: (a) does the current s 5A of the EPA Act , which came into force on 31 October 2005 apply, or does the previous s 5A apply? (b) in assessing whether there was likely to be a significant effect on the EEC, what is the extent of the EEC on the development site? (c) if the previous s 5A applies, what is the meaning of the term "known habitat" in s 5A(2)(c), particularly as applicable to an EEC? (d) is there likely to be a significant effect on the EEC arising out of: (i) clearing of native vegetation on the development site, and/or (ii) a failure to include in the application a buffer between the development site and the EEC? (e) is there likely to be a significant effect on a threatened species or population, being koalas, or their habitat, arising out of: (i) the loss of koala food trees from the development; or (ii) the lack of an effective ameliorative measure due to a failure to prohibit dogs from the residential lots? Background 88 In 2005 Darkheart's ecological impact assessment report and KPoM were provided to the council in support of the First Amendment to the development application. In 2007, following advice from the Department of Planning and the council, a new KPoM by Darkheart was provided to the council which took into account the requirements of the Department of Planning. It accompanied the Second Amendment, as did a neighbourhood management plan. The Department of Planning gave conditional approval to the 2007 KPoM. In 2008 the council granted conditional development consent. Condition 1 was that the 2007 development be implemented generally in accordance with Darkheart's 2007 KPoM, Dearkheart's 2005 ecological impact assessment report and the neighbourhood management plan: see [22], [38], [42] and [45] above.

[49]

105 However, I do not think it matters in this case whether the EEC occupies about 400m2 or two hectares of the site. Habitat 106 The expert witnesses took differing approaches to the relevant "habitat" referred to in the previous s 5A(c) of the EPA Act and to the comparison it invited. 107 Section 4 of the TSC Act defines "region" as: "region means, for the purposes of the provision in which it is used, a bioregion defined in a national system of bioregionalisation that is determined (by the Director-General under subsection (4)) to be appropriate for those purposes. If the bioregion occurs partly within and partly outside New South Wales, the region consists only of so much of the bioregion as occurs within New South Wales." 108 These bioregions are defined in the Interim Biogeographic Regionalisation of Australia, of which 17 are in NSW. The relevant habitat is thus the area within the relevant bioregion occupied, periodically or occasionally occupied, by the threatened species, population or ecological community, as identified in the notice of final determination issued by the Scientific Committee under the TSC Act: Corowa at [58], s 4(1) TSC Act. The comparison which s 5A(c) invites is between that area - not the area of the bioregion itself - and the area occupied by the community which the development is to modify or remove. The comparison is both quantitative and qualitative. 109 In the present case, the relevant bioregion identified in the final notices of determination relating to the EEC is the NSW North Coast bioregion, which has an area of about 5.6 million hectares. However, the final notices record that the extent of the subject ecological community in that bioregion is likely to be less than 800 to 1400 km2, being less than 30 per cent of their original extent. It is with the latter area that a comparison should be made under the former s 5A(c). 110 As I understand it, that was Dr Phillips' approach (although he did not express it clearly) but Mr Berrigan's comparison was with the area of the entire bioregion. However, Mr Berrigan also said in oral evidence that even on Dr Phillips' comparison the area of EEC affected by the proposal was not significant. I agree. 111 The final notices of determination record that very few examples of the EEC remain unaffected by weeds. The causes of weed invasion include physical disturbance to the vegetation structure of the community, dumping of landfill rubbish and garden refuse, polluted runoff from urban and agricultural areas, construction of roads and other utilities, and grazing by domestic livestock. Whether development likely to significantly affect the EEC or its habitat 112 The statutory test is not whether the development is likely to impact to any extent on threatened species, populations or ecological communities, or their habitats. It is whether the development is likely to "significantly affect" them: Corowa at [81]. 113 Mr Berrigan stated in his 2005 Darkheart ecological impact assessment report that the development will result in the loss of 400m2 of EEC for the required road crossing and that there were about two hectares of EEC on the site along the drainage lines. He concluded that the loss of 400m2 of EEC, in a regional sense, was not a significant area of known habitat; and that, provided recommendations in his report were implemented and legislation enforced, the remaining EECs on the site should be retained post development in a condition very similar to their current state. As discussed earlier, in these proceedings he reduced his two hectare estimate to about 400m2, which I am prepared to accept, but I do not think it matters which estimate is accepted.

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116 The concept of "significant" in s 5A(c) is relative, quantitatively and qualitatively, to the regional distribution of the EEC: Corowa at [73] per Jagot J; Plumb at [41] per Pearlman J. 117 These cases turned on their facts. In Corowa it was held that 9,000m2 of a community was not a "significant area" of known habitat in the context of its distribution throughout the North Coast bioregion (an area of about 5.6 million hectares) and its degraded condition: at [73]. In Plumb it was held that the removal of up to 7 hectares of a threatened species, Cumberland Plain Woodland, would be insignificant compared with the area of that species across the relevant region, the Cumberland Plain: at [44]. A different conclusion was reached on the facts in BT Goldsmith Planning Services Pty Limited v Blacktown City Council [2005] NSWLEC 210 at [73] where uncertainty in the evidence as to the extent of the EEC led Pain J to invoke the precautionary principle, which is one of the principles of ecologically sustainable development referred to in the objects of the TSC Act. 118 In the present case 400m2 of EEC will be lost and there is a debate as to the potential impact on the balance of, at most, about two hectares of EEC. 119 The experts' disagreement primarily related to whether or not, by virtue of the ameliorative measures proposed, the integrity of the remaining EEC will be sustainable over the medium to long term following development consent. 120 Dr Phillips considered that if the ameliorative measures did not "guarantee" sustainability, then a significant impact will result from the development. I do not accept his "guarantee" criterion. It is higher than, and distracts attention from, the s 78A(8)(b) criterion as to whether the development is "likely to significantly affect" threatened species, populations or ecological communities notwithstanding the proposed ameliorative measures. 121 Dr Phillips considered that to assist coastal floodplain EECs to maintain the essential ecological processes for which they are responsible (water quality, flood mitigation and biodiversity support), it is necessary to effectively buffer them against adverse impacts such as clearing, fragmentation, degradation, landfills and earthworks associated with urban development, pollution from urban and agricultural runoff, and weed invasion. 122 Dr Phillips disagreed with Mr Berrigan's conclusion that the EEC will be retained post development in a condition very similar to its current state because, in his opinion, the lack of provision for an ecological buffer to this EEC remnant significantly compromises its longer term ecological viability and ability to survive as a functioning ecosystem. That, he said, was because (a) tree removal for the purpose of creating building envelopes and associated asset protection zone requirements is to be undertaken; (b) underscrubbing of development lots by residents in order to increase general utility of their land will occur; and (c) as a direct consequence of (a) and (b) there will be an increase in nutrient and sediment loads due to increased surface runoff, the keeping of domestic livestock and effluent. Dr Phillips recognised that these impacts will not necessarily bring about the localised extinction of the EEC, but in his opinion they have the potential to significantly diminish the associated ecological processes that are a key component of the ecosystem function that the EEC currently provides, and hence should be minimised or avoided if possible. In short, Dr Phillips has little faith in the ability of the proffered ameliorative measures to achieve their stated aims of protecting the long term integrity of the EEC. Consequently, he considered that a 35 metre wide vegetated buffer should be established. 123 Mr Berrigan considered, as did the Department of Planning and the council, that the measures provided in his 2005 assessment and adopted in consent conditions are practical and enforceable and thus can ensure that the development does not result in impacts that would negate the ecological sustainability of the site's habitats. He noted that enforcement of consent conditions is a characteristic of all development approvals. He considered that a buffer is not essential for this proposal due to:

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(a) no loss of currently utilised food trees; (b) minimal potential loss of primary preferred koala trees, with 10:1 replacements resulting in a net increase in koala food trees; (c) effective protection of 80 per cent of the site including all known, and the overwhelming majority, of potential koala habitat, ensuring sufficient habitat is retained for present and future koalas, with minimal reliance on habitat restoration for any offset; (d) provisions for control of existing threats (uncontrolled bushfire, weed invasion and wild dogs); (e) provisions approved by the Department of Planning for control of dog ownership, including prohibition of dogs with a body weight in excess of 10 kilograms which dominate the breeds responsible for koala mortality attacks; (f) provisions to minimise the risk of vehicle strike; (g) effective retention of habitat linkage throughout the site to allow intra and inter-habitat movement and to minimise the need for koalas to cross open grounds and yards. 142 Mr Berrigan's analysis is persuasive and I accept it. 143 In terms of s 5A(a) I am satisfied that the life cycle of the koala is not likely to be disrupted such that a viable local population of the koala is likely to be placed at risk of extinction. 144 Taking all relevant factors into account, I am satisfied that the development is not likely to significantly affect the koala or its habitat. Accordingly, s 78A(8)(b) of the EPA Act did not require the development application to be accompanied by a species impact statement on account of the effect on the koala or its habitat. Conclusion 145 For these reasons, I do not accept ground 2(a). GROUND 2(b): ENVIRONMENTAL MANAGEMENT PLAN 146 Ground 2(b) is that the development consent is invalid because the council did not have before it an environmental management plan (EMP) required by the Director-General of the Department of Planning (Director) when giving conditional approval pursuant to cl 13(2) of the Koala SEPP or a draft condition requiring preparation of an EMP. 147 The proposed development is on land which is a core koala habitat to which the Koala SEPP applies. Clauses 9 and 13(2) of the Koala SEPP provide: " 9 Step 3 - Can development consent be granted in relation to core koala habitat?

[109]

178 In Currey v Sutherland Shire Council (1998) 100 LGERA 365 clause 19 of a local environmental plan prohibited certain development within a foreshore building line unless the council was satisfied as to specified things. Stein J said at 375: "Was it enough that the officer's report contained a reference to cl 19 and the foreshore building line? In my opinion, it was not…cl 19 was never identified as an issue for the council. Far from it, any councillor coming to the report (read with the appendices) would be likely to assume that there was no issue arising under cl 19 necessary to be addressed. Councillors would most likely be unaware of the prohibition contained therein or of the need to consider the possible exception under cl 19(6). Both cl 19(5) and (6) require the council to be satisfied. The rolled-up conclusion to the report would also be likely to lead members of the council to believe that the application complied with the LEP." 179 In Manly Council v Hortis [2001] NSWCA 81, 113 LGERA 321 a local environmental plan provided that a council shall not grant consent to the carrying out of development unless it is of the opinion that the carrying out of development is consistent with the zone objectives. The council officer's report made no mention of zone objectives and the Court of Appeal held that the inference was open that they were not considered. It was said at [54]: "…Both Currey and Franklins ([31]-[35]) demonstrate that an inference that a consent authority considered a specific precondition to its power to grant a development consent will not normally be derived from material which demonstrates no more than that the consent authority was aware of the issues which were relevant to its decision whether or not to grant consent if it had power to do so. In the present case, it is unnecessary to do more than emphasise a point made by Stein JA in Currey (at 375). In the absence of express reference to the effect of cl 17 of the LEP in the extensive information available to the council, that material was unlikely to assist it. The extent of the available information combined with the absence of any reference to cl 17 was more likely to cause the council to overlook that cl 17 prohibited the council from granting consent to the development unless it was satisfied that it would not have a detrimental effect on the Foreshore Scenic Protection Area." 180 The failure to consider cl 13 was significant because it is in mandatory terms, requiring consideration of the matters that it lists before the council gives consent to development. The council reports absence of reference to cl 13 of the LEP was, I think, likely to lead the council to conclude that it was inapplicable. 181 This is reinforced by the representation in the applicant's statement of environmental effects that cl 13 was inapplicable, and by the fact that it is difficult to work out on the zoning map whether it applied to the development site. The latter fact was reflected in the initial confusion at trial on the part of the parties' experienced counsel as to whether, and if so what, part of the development site was subject to cl 13.

[112]

Council's response to these concerns has been detailed in other areas of this report." 185 In Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 30-31 Gibbs J held: "Of course the Minister cannot be expected to read for himself all the relevant papers that relate to the matter. It would not be unreasonable for him to rely on a summary of the relevant facts furnished by the officers of his Department. No complaint could be made if the departmental officers, in their summary, omitted to mention a fact which was insignificant or insubstantial. But if the Minister relies entirely on a departmental summary which fails to bring to his attention a material fact which he is bound to consider, and which cannot be dismissed as insignificant or insubstantial, the consequence will be that he will have failed to take that material fact into account and will not have formed his satisfaction in accordance with law." 186 One of the submissions received by the council in September 2006 was from Mr Paul Davies. The issues raised in his submissions included water pollution and water management. There was no reference to those issues in the council report. They were relevant matters for consideration. If the council failed to consider his 2006 submissions, then the council failed to comply with the mandatory requirement to consider "any submissions": s 79C(1)(d) EPA Act. 187 It should be presumed, as the respondents submit, that the councillors read the earlier submissions. In Castle Constructions Pty Ltd v North Sydney Council [2008] NSWLEC 137 at 59 Lloyd J held that "there was a prima facie presumption that the councillors had at least the opportunity to read the material in the council's possession: Schroders Australia Property Management Ltd v Shoalhaven City Council [2001] NSWCA 74 at [72]". In Schroders at [72] it was held that: "…the prima facie presumption was that the councillors had read the opinion (which was in the Council's files) and it was for Schroders to rebut that. No evidence was led establishing that the councillors had not read the opinion. There was therefore no need for the Council to lead any affirmative evidence concerning the inspection of the files by individual councillors."

Parties

Applicant/Plaintiff:

Nambucca Valley Conservation Association

Respondent/Defendant:

Nambucca Shire Council

Cases Cited (34)

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

Aldous v Greater Taree City Council [2009] NSWLEC 17, 167 LGERA 13 Austral Monsoon Industries Pty Ltd v Pittwater Council [2009] NSWCA 154, 166 LGERA 436 Belmorgan Property Development Pty Ltd v GPT Re Ltd [2007] NSWCA 171, 153 LGERA 450 Boral Resources (Country) Pty Ltd v Clarence Valley Council [2009] NSWLEC 81 Boral Resources (Country) Pty Ltd v Clarence Valley Council (No 2) [2009] NSWLEC 133 B T Goldsmith Planning Services Pty Ltd v Blacktown City Council [2005] NSWLEC 210 Cameron v Nambucca Shire Council (1997) 95 LGERA 268 Caroona Coal Action Group Inc v Coal Mines Australia Pty Ltd (No 2) [2010] NSWLEC 1 Castle Constructions Pty Ltd v North Sydney Council [2008] NSWLEC 137 Corowa v Geographe Point Pty Ltd [2007] NSWLEC 121, 154 LGERA 117 Currey v Sutherland Shire Council (1998) 100 LGERA 365 Ex parte Renouf [1924] 24 SR (NSW) 463 Gales Holdings Pty Ltd v Tweed Shire Council [2008] NSWLEC 209 Gedeon v Commissioner of the New South Wales Crime Commission [2008] HCA 43, 236 CLR 120 GPT Ltd v Belmorgan Developments Pty Ltd [2008] NSWCA 256, 72 NSWLR 647 Gunning Sustainable Development Association Inc v Upper Lachlan Council [2005] NSWLEC 23, 138 LGERA 281 Hamod v Minister for Urban Affairs and Planning [2009] NSWLEC 24 CASES CITED: House of Peace Pty Ltd v Bankstown City Council [2000] NSWCA 44, 48 NSWLR 498 Manly Council v Hortis [2001] NSWCA 81, 113 LGERA 321 Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 Motorplex (Australia) Pty Ltd v Port Stevens Council [2007] NSWLEC 74 Neighbourhood Association DP 285249 v Watson [2008] NSWSC 876, 162 LGERA 322 Oshlack v Richmond River Council (1993) 82 LGERA 222 Panagopoulos v Willoughby City Council (1992) 78 LGERA 270 Plumb v Penrith City Council [2002] NSWLEC 223 Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28, 194 CLR 355 Pselletes v Randwick City Council [2009] NSWCA 262, 168 LGERA 59 Schroders Australia Property Management Ltd v Shoalhaven City Council [2001] NSWCA 74 Shanahan v Strathfield Municipal Council [1973] 2 NSWLR 740 The Queen v Australian Broadcasting Tribunal; Ex parte Hardiman [1980] HCA 13, 144 CLR 13 Timbarra Protection Coalition Inc v Ross Mining NL [1999] NSWCA 8, 46 NSWLR 55 Townsend v Evans Shire Council [2000] NSWLEC 163, 109 LGERA 336 Weal v Bathurst City Council [2000] NSWCA 88, 111 LGERA 181 Woolworths Ltd v Pallas Newco Pty Ltd [2004] NSWCA 422, 61 NSWLR 707

(1997) 95 LGERA 268

(1998) 100 LGERA 365

(1986) 162 CLR 24

(1996) 185 CLR 259

(1993) 82 LGERA 222

(1992) 78 LGERA 270