Aboriginal Elder's court victory is a win for the environment and the community
By EDO NSW Outreach Solicitor Emily Ryan
9 July 2015
The Land and Environment Court has confirmed that effective community consultation is fundamental to the process for making and amending local environmental plans (LEPs).
In June 2015, the Court ruled in favour of EDO NSW client Mr Michael Ryan, an Aboriginal Elder from the Northern Rivers, in his challenge to the validity of amendments made to the Lismore LEP.
The LEP sets out how land can be used on the North Lismore Plateau. The land is sacred to the North Lismore Aboriginal community, and is home to a number of culturally significant sites. It also contains areas of environmental value, including lowland rainforests, grassland communities, freshwater wetlands, and habitat for threatened species including koalas, microbats, the Rose-crowned Fruit-dove, Thorny Pea, Sweet Myrtle, and Hairy-joint Grass.
The amendments to the LEP were proposed in response to a request by property developers that North Lismore Plateau be rezoned to allow for the development of around 1,500 homes. Prior to this proposal, land on the North Lismore Plateau was primarily zoned for rural use.
Lismore Council forwarded the proposal to the Planning Department and asked it to make a ‘gateway determination’ about whether the proposed amendments could be drafted and mapped. As well as rezoning land for residential development, the Council proposed that over a quarter of the land would be rezoned for environmental protection and restoration which would play a vital role in the abatement of the impacts of the residential development on the environment.
In August 2012 the Department gave the Council permission to place the proposed amendments on public exhibition and consult with the community. But a month later, the Planning Minister announced a review of the use of environmental zones in Far North Coast LEPs, saying that the Government would not endorse the use of environmental zones on land that was currently zoned for rural use due to perceived conflicts between agricultural and environmental uses of land in the region.
Despite the Minister’s announcement, the proposed amendments that the Council placed on public exhibition indicated that 28.5% of the land on North Lismore Plateau would be rezoned for environmental protection and restoration.
Over a year later the amendments were finalised and the LEP was made. But the environmental zones were not included in the final LEP. These areas were instead retained for rural use.
Image: Mr Ryan and EDO NSW Solicitor Belinda Rayment
The ruling affirms an important line of cases in the Land and Environment Court and the NSW Court of Appeal which establish that community consultation is an essential element of the plan making process because it ensures procedural fairness and the transparent and accountable exercise of government power.
Mr Ryan lodged a challenge to the validity of the amendments in the Land and Environment Court, arguing that the final LEP was fundamentally different to the proposed amendments that the community had been consulted on, and was therefore not a product of the process set out in the law.
Mr Ryan’s challenge was based on a line of authority developed by the Land and Environment Court and the NSW Court of Appeal over a period of 20 years. In the Leichhardt line of cases, the Courts have consistently found that community consultation is a fundamental part of the process set out in the law for making and amending LEPs, and that in order for an LEP to be valid, it must remain part of the process set out in the law. The Courts have repeatedly held that where there are substantial changes made to an LEP between the time that it is exhibited for community consultation and the time that it is finalised, that LEP is invalid because it has not been made in accordance with the process set out in the law.
In this case, the Court held that ‘the absence of environmental protection zonings in the final LEP fundamentally altered the nature of the proposal as a whole,’ and that therefore the final LEP was not a ‘product of the process’ set out in the law. Because Mr Ryan was entirely successful in his challenge, the Court ordered the Minister to pay his costs of bringing the case.
The Court’s recognition that community consultation is vital to environmental plan-making is an important win for the community.
Mr Ryan and his community were overjoyed with their success in Court. Mr Ryan told us, ‘I want to thank EDO NSW from the bottom of my heart for all they have done to achieve a win for the North Lismore Plateau Protection Group. My family were in tears, people in the streets were in tears with the decision going our way.’