Michael Ryan v The Minister for Planning, Lismore City Council & others

June 2015

In 2014, EDO NSW, on behalf of Aboriginal elder Mr Michael Ryan, successfully challenged the validity of changes made to a Local Environmental Plan for the North Lismore Plateau, with the NSW Land and Environment Court, finding that the decision to remove environment protection zones from the plan was invalid.

The last minute amendments removed the only legal protection for important plants, animals and Aboriginal cultural heritage.  The Environmental Plan originally protected 28.5 per cent of the 255 hectare North Lismore Plateau site. The rest of the rural land was mostly zoned for housing development. 

The environmental protection zones had been included in the original proposal for the Local Environmental Plan amendment and were publicly exhibited by Lismore City Council. They were intended to protect Aboriginal heritage sites and areas of environmental value. These zones included regenerating lowland sub-tropical and dry rainforest, which provide habitat for threatened fauna, such as koalas, the Rose-crowned Fruit-dove, and threatened microbat species, as well as sites containing the rare native plant species, Thorny Pea and Hairy Joint grass.

The environmental protection zones were removed, apparently due to the Department of Planning’s ongoing review of the use of environmental zoning by councils in northern NSW.

Mr Ryan objected to the removal of the environmental protection zoning due to its potential impact on the cultural heritage and environment of the North Lismore Plateau. The basis of his objection related primarily to the fact that the Environmental Plan that was made was fundamentally different to the one everybody thought was being made and as it was publicly exhibited.

Mr Ryan argued that, in the circumstances, the LEP Amendment was not a product of the process set out in the Environmental Planning and Assessment Act 1979 for the making of Local Environmental Plans, and given that no opportunities for public consultation were provided in regard to the fundamentally altered LEP Amendment, there has been a failure to provide procedural fairness.

EDO NSW is grateful to barristers Philip Clay SC and Natasha Hammond who acted as counsel for Mr Ryan in this matter.

Judgment