Issue 1 August 2005
TOWN PLANNING & LOCAL GOVERNMENT BRIEFLY
In this issue:
Threatened Species & the Precautionary
Approach
A recent decision of the Land & Environment Court has endorsed
the use of the precautionary approach in evaluating the need
for preliminary steps in a development approval – in this
case, whether a Species Impact Statement was required.
The case is BT Goldsmith Planning Services Pty Ltd v Blacktown
City Council [2005] NSW LEC 210, in which Norman Waterhouse
represented the Council. The case concerned a 33-lot subdivision
of land, which it was acknowledged contained a population of
prime Cumberland Plain Woodland. The development application
was not accompanied by a Species Impact Statement, (or SIS),
which was required if the development was “likely to
significantly affect threatened…ecological communities
or their habitats” under s 78A(8)(b) of the EP&A
Act 1974.
There was a volume of inconclusive, and probably outdated, information
before the Court from the DEC (formerly NPWS) as to the amount,
quality and incidence of CPW within the Cumberland Plain, from
which it appeared the CPW of the subject site constituted about
0.0349% of the total area of prime CPW, or only 0.137% of the
total area of CPW of all quality.
It was in these circumstances that the Court (Pain J) came to
consider whether the precautionary approach should be adopted
in deciding whether an SIS was required. Quoting from earlier
authority, the Court said that the approach required that “where
there is a lack of scientific certainty………….the
decision maker must approach the matter with caution but will
also require the decision maker to avoid, where practical, serious
or irreversible damage to the environment”. The Court
held that this approach should be adopted to the preliminary
question of whether an SIS was required, and not just to the
final question of whether the development application should
be approved. Her Honour considered several factors before coming
to the conclusion that a significant area of known habitat was
to be removed or modified even though the affected area was only
about 0.1% of the total area of CPW and accordingly that the
development was likely to significantly affect the community,
necessitating an SIS. Interestingly, the Court took into account,
in addition to the 8-point test, the cumulative impact which
clearing of the subject site would have, the evidence being that
a large proportion of CPW was contained within relatively small
areas of land.
The lessons for councils are clear, not only in relation to
CPW, but also in relation to other threatened or endangered species.
It would seem that, unless the possible impact of a development
is clear from a scientific point of view, the Court will err
on the side of protection in considering not only applications
but also steps associated with the making of application, and
will be willing to find significant effect in a wide range of
circumstances which a council might well have seen the other
way. It is clear that the question is one for the Court, not
the council, to determine and the result will be, in circumstances
similar to the above, that an application, and any approval granted
on it, will be void. Councils will, themselves, have to be more “precautionary” in
dealing with applications where impact on the environment is
an issue.
Retrospective Issue of Construction Certificates
The Land and Environment Court has now held in Marvan Properties
Pty Ltd v Randwick CC [2005] NSWLEC 9 that councils can
issue a construction certificate under the current provisions
of the EP&A Act after the relevant work has been commenced
or carried out. This is despite the fact that:
- S 81A(2) of the Act makes it an offence to commence construction
until a construction certificate has been issued.
- The provisions of s 109E of the Act regarding periodic inspection
of building works will not have been complied with. The Council,
the Court concluded, could address this difficulty, at the
occupation certificate stage.
This decision follows upon the Court’s earlier willingness
to allow s 96 modifications to a consent to be granted retrospectively.
It is to be welcomed as removing an unnecessary, and legally
vexatious, obstacle to occupation of a building. It is worth
empathising that the Court found that the Council retained adequate
controls over inadequate or non-complying building work in the
exercise of its discretion at the stage where a construction
certificate is sought. At the same time, the Court was at pains
to point out that the Act contemplated that a construction certificate
was to be obtained before work commenced and that statutory liability
for breach still existed in appropriate cases, no doubt where
the Council felt that the statutory provisions had been wilfully
breached or ignored.
Developer Contributions
In a recent case involving the refurbishment of existing licensed
premises within the Manly Council area, the Council claimed $82,000 for
developer contributions towards car parking, amended in Court
to $5.3 million. Following lengthy discussions
with experts, Council agreed the appropriate amount was either $27,000 or
nil, with the Court accepting it was nil.
The moral of the story here is to ensure you always check the
amount of developer contributions requested if you are an Applicant,
and to always ensure you have correctly calculated the amount
requested by Council staff.
You should also be mindful of the content of the Environmental
Planning & Assessment Amendment (Development Contributions)
Act, 2005, which came into force on Friday 8 July
2005. DIPNR has prepared a series of practice notes,
which replaces the s94 Contributions Plan manual, published
by the Department in 1997. The practice notes are available
from the DIPNR website at:
www.dipnr.nsw.gov.au/planningreform.html,
covering s94 Contribution Plans, s94A Contribution Plans and
Planning Agreements. Please contact one of our staff members
should you wish to discuss the implications of the amendments
to the Act.
For further information about issues covered
in any of the abovementioned articles, please contact a member
of the Sydney Local Government Team.
Mary-Lynne Taylor- Partner
Ph. 02 9023 0133
Email: mtaylor@normans.com.au
Peter Kelso- Partner
Ph: 02 9023 0115
Email:pkelso@normans.com.au
Felice D’Agostino- Associate
Ph. 02 9023 0131
Email: fdagostino@normans.com.au
Dennis Loether- Associate
Ph. 02 9023 0140
Email: dloether@normans.com.au
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