Friends of South West Rocks Inc v Machro Pty Limited and Ors

December 2004

On 21 December 2004 the Land and Environment Court ruled in favour of the community group, Friends of South West Rocks Inc (FOSWR), represented by EDO NSW, when she found that Kempsey Shire Council had acted outside of its powers in granting consent to three development applications for a total of 82 housing lots on 8.5 hectares of native forest in South West Rocks on the north coast of NSW.

Justice Pain found that in granting consent to the DAs, the Council had breached the provisions of State Environmental Planning Policy No. 71 (SEPP 71) and had no power to grant consent to the DAs because the Minister was the proper consent authority for one of the DAs and the Council could not grant consent to the DAs in the absence of a master plan for the land. Accordingly, the Court found that the consents are void and of no effect.

FOSWR also challenged the grant of concurrence by the Director-General of National Parks and Wildlife, to the DAs lodged by Machro and Eric Norman in respect of impacts of the development proposals on threatened fauna species on the land, in particular, Phascogales and Squirrel Gliders. Justice Pain found that it was not strictly necessary to determine the validity of the concurrence given that she found that the consents were invalid. Her Honour considered the parties' arguments in relation to this ground of review and stated that ‘in the absence of an express power in the NPW Act or the EP&A Act enabling the imposition of a requirement for the payment of money for compensatory habitat, such a requirement is beyond power’. However, Justice Pain concluded that she was not in a position to finally determine FOSWR's arguments in relation to the concurrence.

On 30 November 2004 assent was given to the Threatened Species Legislation Amendment Act 2004. Section 126N, which is contained within Schedule 1 of the amendment Act, provides the Director General with specific statutory powers to grant concurrence conditional on voluntary conservation action. Subsection (2)(d) provides that voluntary conservation action may include the contribution of money for the reservation of land or to secure the protection of land for conservation purposes or to restore threatened species habitat on land.

EDO NSW would like to thank Mr I Hemmings for acting as counsel in this matter.

Judgment