The Lismore App reported last week on the results of a recent court case which challenged the development of housing on the North Lismore Plateau.

It was the third court case involving Aboriginal Elder Micky Ryan who has been trying to stop the development - and also have environmental remediation works undertaken on work already done. 

The recent court case was a “win” for Mr Ryan, as the court found the developer, Winten, should have had a Species Impact Statement included in their Development Application for it to be lawful. 

Mr Ryan’s challenge to the developer also involved Lismore City Council – which had granted the development consent to Winten to undertake the project. 

Read the story here: Court deems North Lismore Plateau development 'invalid'

Lismore City Council has responded to the court’s decision with the following statement, which outlines why Council granted a development consent to Winten:

On Thursday, 14 May 2020 her Honour Justice Pain of the Land and Environment Court gave judgment in Ryan v Northern Regional Planning Panel and Others.

The proceedings were a challenge to the decision of the Panel to grant development consent to a DA lodged by the Winten group for the subdivision of the Plateau. 

The consent permitted the development of the relevant land for residential purposes (together with associated development).

Lismore City Council was a party to the proceedings.

The Court found that a Species Impact Statement (SIS) should have accompanied the DA. 

In circumstances where the SIS did not accompany the DA, the DA was not properly and lawfully made and the decision to grant consent was void and of no effect.

Two other challenges brought by Mr Ryan were not successful. 

Mr Ryan was unable to persuade the Court that orders should be made with respect to the failure to obtain a permit under the Heritage Act 1977 prior to excavation associated with an alleged "grave site”. 

The Court declined to grant any relief – make any declaration that the Act had been breached – and noted that correct procedures on the excavation had been followed and that no relic (including human remains) had been located at the site.

Mr Ryan was also unable to persuade the Court that construction certificates (CC) issued by Council to allow the development to proceed in accordance with the consent were unlawful. 

The Court concluded that the CCs were not inconsistent with the consent. No error had been made by Council when issuing the CCs.

The Court's findings with respect to the threatened species followed extensive investigation into the land which constitutes the North Lismore Plateau. 

The land was rezoned to allow residential development to proceed, and that rezoning process included an investigation of the environmental and ecological attributes of the land. 

Additional ecological investigations were conducted to support the DA which a number of ameliorative measures regarding biodiversity and vegetation on the land, including compensatory planting of over 2000 forest red gums.

The Council prepared a development assessment report in response to the DA and provided that report to the Joint Regional Planning Panel.

The Joint Regional Planning Panel, taking into account the relevant matters, determined that consent should be granted. It was that decision that was successfully challenged in the proceedings.

Mr Ryan’s case relied on new studies prepared by his environmental consultant, Mr Milledge, that became evidence in the proceedings. 

A key feature of that evidence was that the “study area” for the purposes of the SIS, being the area affected by the proposal, was quite a constrained area. 

That is, when considering the impacts on the threatened species arising as a result of the development – for example habitat loss – the area to be considered was essentially the development site.

In this respect Mr Ryan’s evidence differed from the evidence relied on by the developer (Winten) which considered a more expansive study area in which the impacts were to be assessed.

The Court accepted that the area of land to be considered for the purposes of assessing the impacts on the threatened species was essentially the land to which the DA applied. 

In those circumstances, the Court concluded that there was an overall substantial reduction of important habitat. 

Her Honour therefore concluded that there was a real chance of significant impacts on the two species, and a proper and lawful consideration of that impact required the preparation of a SIS.

Lismore City Council’s Director of Partnerships, Planning and Engagement Dr Sharon Harwood responded to the decision as follows:

 “This is an important decision in the context of the development of the Plateau and for other development,” she said.

“Council has always been concerned to protect the environmental attributes of the Plateau - and it was for that reason that so much of the land has been rezoned for the purposes of Environmental Management. 

“There is no suggestion that the land that has been set aside for environmental management is inadequate. 

“The decision provides clarity with respect to that part of the Plateau that needs to be the subject of specific consideration with respect to the ecological impacts arising from any residential development.”

Dr Harwood particularly noted the Court's findings with respect to the issue of the Construction Certificates. 

“Council spent some time considering the development consents in the context of the application for the CCs. 

“Council staff concluded that the CCs could be lawfully issued as they properly implemented the development the subject of the consent. The Court agreed with Council’s conclusions,” he said.

The Council understands that the developer is considering its position following the decision.

Council remains committed to the proper assessment of any development application in the Lismore area, working with the developer, the public and interested parties to ensure that development is sustainable and the environmental impacts are acceptable.