Country
Australia
Sources
InforMEA
Tagging
Wetlands, Injunctive Relief, Wildlife
Abstract
In these proceedings, the applicant, Byron Shire Businesses for the Future Inc., sought a declaration that a development consent granted by the first respondent, Byron Council, was void and it sought consequential injunctive relief. The development application was lodged by the second respondent, Holiday Villages (Byron Bay) Pty Ltd, on 1 April 1993. It sought development consent for the "construction of a village to be operated by Club Mediterranee". The council had granted consent subject to conditions on 11 November 1993. The land in question comprised land within five different zones under the Byron Local Environment Plan 1988.They were No 2(t) (Tourist Area Zone), No 2(v) (Village Zone), No 7(a) (Wetlands Zone), No 7(b) (Coastal Habitat Zone) and No 7(f1) (Coastal Lands Zone). Part of the land also fell within State Environmental Planning Policy No 14 -Coastal Wetlands. The applicant made five claims any of which, if established, would have rendered the development consent void and of no effect. Those claims were as follows: (1) The proposed development was likely to significantly affect the environment of endangered fauna. Accordingly, it was mandatory pursuant to s 77(3)(d1) of the Environmental Planning and Assessment Act 1979 that the development application be accompanied by a fauna impact statement in accordance with s 92D of the National Parks and Wildlife Act 1974. It was not so accompanied and therefore the consent was void. (2) The proposed development was "designated development" within certain of the categories described in sch 3 to the Environmental Planning and Assessment Regulation 1980. Accordingly, it was mandatory that the development application be accompanied by an environmental impact statement. It was not so accompanied and therefore the consent was void. (3) Part of the proposed development was to be carried out within land zoned 7(f1) (Coastal Lands Zone) under the Local Environment Plan pursuant to which development for the purpose of a tourist establishment was prohibited. (4) A number of the conditions of consent which the council imposed were conditions which fundamentally altered the proposed development, or deferred to later consideration the environmental impacts of the proposed development. Those conditions were not capable of being severed from the development consent. They were beyond the power of the council to impose. (5) The proposed development included drainage works which were likely to produce sulphuric acid from the acid sulphate soil upon the site. the council failed to take into account matters required to be taken into account pursuant to s 90(1) sub-ss (b), (g) and (n) of the Environmental Planning and Assessment Act in its consideration of drainage and the effect of acid sulphate soil. The court held, inter alia, that in respect of matters of soil contamination and land drainage the Council had not failed in its duty to have regard to relevant considerations under s 90 of the Environmental Planning and Assessment Act. However, the development application itself disclosed the fact that approximately 33 species of endangered fauna were likely to be within or near the site. The council therefore was on notice that a question of the likelihood of significant effect on their environment arose for determination. It was not reasonable to conclude that there was not likely to be a significant effect on the environment of endangered fauna. Accordingly, a fauna impact statement would have been mandatory. Thus, the development consent was void and of no effect.