Court decides to protect endangered bushland
The Land and Environment Court has found that a bush block owned by the Catholic church in Woy Woy should be treated as an endangered ecological community and protected from development as a retirement village.
The court found that the adverse impact on the environment outweighed factors in favour of the development.
The judgement was delivered on February 17 in the case of Providence Projects Pty Ltd versus Gosford Council.
Providence Projects had taken council to the Land and Environment court to appeal against its refusal of two development applications for the land on the corner of Hillview St and Veron Rd, Woy Woy.
The major application proposed the construction on the site of a managed retirement village comprising 39 residential units and associated communal recreational facilities.
The second application proposed the creation of an allotment upon which the retirement village was to be located.
Although the managed retirement village was not a permissible use in the zone under the local environment plan, because the proposed development was to be erected on land that was residentially zoned, the over-riding provisions of State Environmental Planning Policy Seniors Living made the proposal allowable.
The main question considered by the court was the extent to which the endangered ecological community, Umina Coastal Sandplain Woodland (UCSW), was found on the site.
The court found that, while it was agreed that UCSW was found over much of the site, "significant and irreconcilable differences" existed between the four ecological experts who presented evidence about the extent of the ecological community on the site.
In his judgement, Mr Justice Neal Bignold stated that the uncertainty of its extent gave rise to the application of the "precautionary principle".
The precautionary principle was one of the stated principles of "ecologically sustainable development", he said.
The precautionary principle meant that if there were threats of serious or irreversible environmental damage, lack of full scientific certainty should not be used as a reason for postponing measures to prevent environmental degradation.
The judge said he was of the opinion that there was legitimacy in applying the precautionary principle to resolve the uncertainty of whether UCSW was widely distributed over the development site.
The judgement stated that "the application of the precautionary principle in the present case justifies an approach which avoids the risk of serious or irreversible environmental damage by assuming the existence of the wide distribution of UCSW over the development site".
There were also significant differences between the parties as to the importance and legal adequacy of a species impact statement (SIS) prepared on behalf of the applicant.
The SIS presented two scenarios for the extent of UCSW on the site, the second being referred to during the hearing as a "contingent SIS".
The judgement commented that the Environmental Planning and Assessment Act did not provide for a "contingent" SIS and that this part of the SIS had been included as a precaution to guard against a possible result of the court accepting a wider distribution of UCSW present on the site.
The judgement observed that a statutory obligation for an SIS to accompany a development application existed "if ... the (proposed) development is likely to significantly affect threatened species".
The judge stated that this helped to support and justify the application of the precautionary principle.
The judgement also found that no town planning case had been raised against the proposed development, with the applicant relying upon the established residential zoning of the development site and the permissibility of the proposed development.
The judgement found that the "adverse environmental impact of the proposal on the natural environment outweighed the competing factors weighing in favour of the grant of development consent to the proposal".
Lyle Stone, Judgement, February 17
Land and Environment Court