South East Forest Rescue Incorporated v Bega Valley Shire Council and South East Fibre Exports Pty Ltd

December 2011

EDO NSW, acting on behalf of South East Forest Rescue (SEFR), brought judicial review proceedings challenging an approval by the Bega Valley Shire Council to a pilot wood pellet manufacturing plant at the Eden woodchip mill. SEFR maintained that the Council failed to consider zoning objectives and ecologically sustainable development (ESD) as required by the Environmental Planning and Assessment Act 1979 ("the Act").

Preston CJ delivered judgment on 16 December 2011, upholding three of SEFR's four grounds. His Honour found that Council failed to properly consider a number of matters that it was required to consider, including:

  • the zoning objectives under cl 8(3) of Bega Valley Local Environmental Plan 2002;
  • the public submissions regarding consistency with zoning objectives and ESD; and
  • ESD under cl 79 of the LEP and as an element of public interest under s 79C(1)(e) of the Act.

Significantly, the judge held that Council was bound to consider the public submissions made as Council had exercised its discretion to advertise/give public notice to invite submissions, despite the fact that public notification was not mandated by the Act for this development.

Costs were reserved, and the respondents have since paid SEFR’s costs of the proceedings.

EDO NSW congratulates and thanks Sandra Duggan, senior counsel, and Scott Nash, counsel, who appeared on behalf of SEFR.

Case Summary Judgment