Byron Property Developments Pty Ltd v Byron Shire Council.

The applicant, Byron Property Developments Pty Ltd seeks consent to construct four detached dwellings. This is an appeal, pursuant to section 97(1) of the Environmental Planning and Assessment Act 1979, (EPA Act) against the consent specifically the conditions which delete dwelling 4, because it was to be built in an area which contains vegetation of high conservation value including vegetation which meets the floristic characteristics of one Endangered Ecological Community pursuant to the Threatened Species Conservation Act 1995 Littoral Rainforest in the NSW North Coast, Sydney Basin and South East Corner Bioregions (EEC) and two threatened species pursuant to the Threatened Species Conservation Act 1995 (TSC Act) being: Three Macadamia tetraphylla (Rough-shelled Bush Nut) trees; Two Syzgium moorei (Durobby) trees. To determine the contentions the Commissioner had to assess the impacts of the removal of vegetation to accommodate dwelling 4 and make a determination under section 5A of the EPA Act 1979 as to whether there is likely to be a significant effect on threatened species, populations or ecological communities, or their habitats. The applicant has not provided sufficient information to enable me to make the determination as required by section 5A(1) of the EPA Act 1979 therefore cannot be approved. Consideration should have been given to the likely age of the plants, the potential likely source of the material, the genetic importance, not just on the site but as a resource for future recovery and research. Irrespective of whether the species on the site are planted or not, the genetic material from old isolated species, that may no longer exist, is likely to represent unique genetic material. The genetic relationship of the vulnerable species has not been assessed and should have been particularly given the proximity of the specimen at 49 Shirley Street and the EEC Littoral Rainforest regenerating in the council reserve and the Kiah site.