Nambucca Valley Conservation Association Inc v Nambucca Shire Council & Anor

March 2010

The Nambucca Valley Conservation Association Inc (NVCA) commenced proceedings in the Land and Environment Court challenging the decision of Nambucca Shire Council to allow a rural residential development to proceed in core koala habitat. In its 26 years as a community association, this is the first time that the NVCA has decided to initiate legal proceedings.

The NVCA challenged the decision on a number of grounds, including the significant impact on threatened species (including the koala) and an endangered ecological community; failure to consider provisions of the Nambucca Local Environmental Plan; failure to properly exhibit the proposal after it was amended; and improper deferral of environmental considerations by the Council. The case was part heard in August 2009 and the hearing was completed in late October 2009.

On 18 March 2010, Biscoe J upheld the NVCA's challenge and the development consent was declared invalid.

The Court held that the Council had failed to take into account public submissions made in relation to an earlier version of the development. In addition, the Council failed to advertise the final version of the development, which had changed significantly from the first application in 2003 to the final version in 2008.

The Court also found that, in determining the development application, the Council had failed to consider the provisions of its own local environmental plan dealing with the objectives of the relevant land use zones, as well as general considerations applying to the development.

The Court rejected the challenges on the other grounds raised on behalf of the NVCA.

EDO NSW wishes to thank Mark Seymour who appeared as counsel on behalf of the NVCA in these proceedings.

Summons

Points of Claim Judgment