Clause 8N(1) of the Environmental Planning and Assessment Regulation 2000 prohibits the Minister from approving the development because Currawong is a "sensitive coastal location"' and would normally be prohibited from development under an environmental planning instrument.
The Friends of Currawong are seeking a declaration from the court so that the controversial Part 3A of the Environmental Planning and Assessment Act, which allows the Minister to deal with a proposal instead of the local council, cannot not be used.
Rev the Hon. Dr Gordon Moyes has weighed in on the legal debate by referring to a landmark decision by the Land and Environment Court in 2007. Dr Moyes explained, "In the Walker decision, Biscoe J held that a decision by then Minister for Planning, Frank Sartor, to approve a concept plan in relation to a project to subdivide the land at Sandon Point and construct a retirement development, was void and of no effect."
The Court found that the Minister failed to consider whether flood risks associated with climate change were relevant and may impact the land at Sandon Point which is flood constrained land that is located on the coastal plain. The judgment would also force developers to tailor future projects to meet principles of ecologically sustainable development in order to get building approval from a council or the Government.
Dr Moyes said, "This decision made by Briscoe J demonstrates the Land and Environment Court's consideration of the significance of global environmental impacts such as greenhouse gas emissions and climate change on project assessments. The 'Walker Decision' is relevant in the case of Currawong and the Minister must take the Court's decision into account."
According to the NSW Department of Planning clause 8N(1) would not apply because there has been no determination made on potential rezoning and development proposals in Currawong.
"Currawong holds significant natural, cultural, and heritage value to the people of New South Wales. The developer's plans to transform Currawong into a community filled with McMansions for the elite highlights the vested interests of property developers and their influence on the State Government", Dr Moyes commented.
Dr Moyes concluded, "Currawong holds tremendous importance in the State's indigenous, colonial and social history and I encourage Minister Keneally to take necessary actions to ensure that Currawong is protected from residential subdivision or other inappropriate development."