Western Sydney Conservation Alliance Incorporated v Penrith City Council and Maryland Development Company Pty Ltd and St Marys Land Limited

December 2011

These judicial review proceedings were bought by EDO NSW on behalf of Western Sydney Conservation Alliance Inc challenging approval by the Penrith City Council to four residential subdivisions on land containing the critically endangered Cumberland Plain Woodland, on the basis that Council had failed to take into account the Cumberland Plain Recovery Plan of February 2011, as required by the Environmental Planning and Assessment Act 1979 (EPA Act) and the Threatened Species Conservation Act 1995 (TSC Act).

In Western Sydney Conservation Alliance v Penrith City Council [2011] NSWLEC 244 the Court held that Council had failed to consider the Recovery Plan as required under the EPA Act, as the Species Impact Statement and other documents before Council erred in their treatment of the recovery plan. The Court ordered that the operation of the consents be suspended and that the consents be validated upon the Council reconsidering the development applications, having regard to the details of the Recovery Plan. Each party was ordered to pay its own costs. The Court also confirmed a council’s responsibilities to consider and implement recovery plans under particular sections of the EPA Act and the TSC Act.

Following Council’s decision to regrant the development applications for subdivision with a minor alteration, this time taking into account the Cumberland Plain Recovery Plan, the Court considered a motion for orders under s 25C of the Land and Environment Court Act 1979 to validate the new consents. In a subsequent judgment, Western Sydney Conservation Alliance v Penrith City Council [2012] NSWLEC 99 the Court held that the Council was required to revoke the suspended development consents but hadn’t done so, and it adjourned the matter to allow Council to do so.

On 15 May 2012 in Western Sydney Conservation Alliance Incorporated v Penrith City Council [2012] NSWLEC 109, following Council’s revocation of the old consents, the Court made a number of orders, including a declaration that the terms of the Court’s suspension of the old consents had been complied with, that the new consents had been validly regranted and that the old consents had been revoked.

EDO NSW thanks Chris Norton of counsel who appeared on behalf of Western Sydney Conservation Alliance Incorporated.

Judgment - order that the operation be suspended in part

Judgment - Hearing of the notice of motion is adjourned

Case Summary Judgment