PO Box 4134 Werrington NSW 2747
E-mail: info wsca.org.au (insert @ after info)
0431 222602

Home

 

 

 

Summary of WSCA v Penrith City Council & Ors
Land and Environment Court Proceedings No 40783 of 2011

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).

Judgment is not likely to be delivered until early 2012

 

WSCA v Penrith City Council & Ors
Land and Environment Court Proceedings No 40783 of 2011

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