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PO Box 4134
Werrington NSW 2747 |
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PO Box 4134
Werrington NSW 2747 |
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Summary of WSCA v Penrith City
Council & Ors
Western Sydney Conservation Alliance Incorporated v Penrith City Council
and Maryland Development Company Pty Ltd and St Marys Land Limited
Western Sydney Conservation Alliance Incorporated (WSCA) has appealed
Penrith City Council’s approval of four development applications for
subdivision in Jordan Springs by Maryland Development Company Pty Ltd
and St Marys Land Limited, being subsidiaries of Lend Lease.
The NSW Land and Environment Court heard the case on 31 October,
1 and 3 November 2011 and judgment has been reserved.
The land proposed to be developed is adjacent to the Wianamatta Regional
Park and contains a number of endangered and vulnerable ecological
communities and species including Cumberland Woodland Plain. The
proposed development would result in the clearing of 59 hectares of the
critically endangered Cumberland Plain Woodland. It also fails to
provide for adequate buffer zones between the Regional Park and
residential lots.
The judicial review proceedings were bought on the basis that the
Council failed to take into account the Cumberland Plain Recovery Plan.
It was also argued that Council failed to follow the correct procedure
where it proposes to depart from a recovery plan under the
Threatened Species Conservation
Act 1995 (TSC Act), which requires Council to notify and consult
with the Director General. WSCA argued that this failure infected the
Council’s decision to approve the development such that it is contrary
to law and is thus invalid.
The Respondents (Penrith Council and Lend Lease) made the following
submissions:
1.
The recovery plan is not applicable in the context of decisions on
development applications because the recovery plan is required to be
considered under s.5A and s.79C of the
Environmental Planning and
Assessment Act 1979 (EPA Act).
WSCA argued that the requirements under the EPA Act don’t operate to
exclude the additional requirements under the TSC Act and the TSC Act
itself makes it clear that its obligations apply to the assessment of
development applications.
2.
The clauses of the recovery plan raised by WSCA do not apply to private
land zoned for urban development and the recovery plan is focused on
priority conservation land, which this land is not.
WSCA argued that this is not the case because the recovery plan requires
certain actions to be taken on private land, does make exceptions based
on the zoning of land, and while the focus of the recovery plan is on
priority conservation land this is not to be read as excluding actions
outside of those areas.
3.
Council did consider the recovery plan and the TSC Act requirements in
any event.
WSCA argued that this is not the case because the recovery plan was not
before Council, and the Council officer’s report does not squarely
address the recovery plan nor the relevant sections of the TSC Act that
require Council to take the recovery plan into account.
4.
Even if Council did not consider the recovery plan, the decision
properly implements the requirements of the Recovery Plan in any event.
WSCA argued that this is not the case because the
particular requirements of the recovery plan for private land have not
been addressed, for example, Council has not considered
Recovering bushland on the
Cumberland Plain – Best practice guidelines for the management and
restoration of bushland (DEC 2005), and there is no site action or
management plan for the subdivision sites which address the management
of threatened biodiversity and is consistent with the recovery plan (as
required by Appendix 2, page 31 of the recovery
plan).
WSCA v Penrith City
Council & Ors Western Sydney Conservation Alliance Incorporated v Penrith City Council and Maryland Development Company Pty Ltd and St Marys Land Limited The Environmental Defenders Office has initiated proceedings on behalf of the Western Sydney Conservation Alliance Incorporated (WSCA) against Penrith City Council (the Council), Maryland Development Company Pty Ltd and St Marys Land Limited, the latter two companies being subsidiaries of Lend Lease. WSCA is challenging the validity of the decision by the Council to approve a number of development applications for the subdivision of land for residential development at the former Australian Defence Industries site now known as Jordan Springs, in Penrith. The land proposed to be developed is adjacent to the Wianamatta Regional Park and contains a number of endangered and vulnerable ecological communities and species including Cumberland Woodland Plain. The proposed development would result in the clearing of 59 hectares of Cumberland Plain Woodland, which is a critically endangered ecological community. It also fails to provide for adequate buffer zones between the Regional Park and residential lots. These judicial review proceedings have been bought on the basis that the Council failed to take into account a number of mandatory relevant considerations required under the Threatened Species Conservation Act 1995 (NSW), in particular the Cumberland Plain Recovery Plan. WSCA argues that this failure infected the Council’s decision to approve the development such that it is contrary to law and is thus invalid. You can download and view our Points of Claim as to why Councils consents are invalid. Download here 2.8 mb
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