Cranky Rock Road Action Group Inc v Cowra Shire Council and Ors

September 2005 & December 2006

The case concerned approval of a 28-lot rural residential subdivision in Cowindra. No Statement of Environmental Effects (SEE) had ever been lodged for the proposal contrary to the requirements of the Environmental Planning and Assessment Regulation 1979 (NSW). There was no dispute that the Act had been breached. The question was, did this make the consent invalid?

At first instance, Bignold J of the Land and Environment court held that failure to lodge an SEE was not a breach which lead to invalidity. CRRAG, represented by EDO NSW, appealed to the Court of Appeal. In the Court of Appeal, the Minister was joined as second appellant, and supported CRRAG in arguing that the consent should be declared invalid on the grounds of failure to submit an SEE.

The Court of Appeal unanimously upheld the decision of the Land and Environment Court, finding that the consent was valid. Tobias JA found that a reading of the Act and the Regulations did not demonstrate a legislative intention that breach of the requirement for an SEE should lead to invalidity of the consent. The principal factors which his Honour relied upon were:

The Court noted that irrespective of whether an SEE was lodged, the Council had an obligation to properly consider the impacts of the proposal under s 79C of the Act.

This decision allows Councils to effectively decide whether or not they will insist on an SEE being submitted. This is of concern, and tends to overlook the fact that development application procedures are designed to keep Councils, as well as developers, accountable. SEEs may vary in quality, but they are the only form of assessment carried out for the vast majority of development proposals in this state. If no SEE is lodged or exhibited, it makes it much more difficult for members of the community to make informed submissions in relation to the proposal.

EDO NSW would like to thank

Judgment - Order on costs

Judgment Appeal