Eden chip mill expansion halted after second successful legal challenge

The move by ANWE management pre-empted the ruling in the Land and Environment Court on October 15, that the development consent dated September 14 was "invalid, void and of no force and effect".

This was the second time the DA had been successfully challenged in the Land and Environment Court by South East Forest Rescue (SEFR), which was represented by the Environmental Defenders Office.

As a consequence the DA will return to council for a third time on Wednesday, October 20.

The effect of the latest legal action by SEFR means the development consent is considered invalid, because it was given after work on the timber hub had started. The court ruling prohibits any work that relies on the "invalid" consent.

This latest ruling comes after council originally approved the development by delegation to a member of staff in September 2020 for the construction and operation of a log sorter, sawmill, pallet plant, briquette plant and repurposing of the existing water treatment thickener tank.

The application was publicly advertised and notified to adjoining landowners. External referral and approval agencies were also consulted. General terms of approval were issued by the NSW Environment Protection Authority.

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In December 2020 a Class 4 Judicial Review appeal was lodged in the NSW Land and Environment Court of NSW by SEFR against council's approval of the development.

In August 2021, Judge Robson of the Land and Environment Court of NSW ruled the approval invalid because it was made by a staff member rather than considered in full council.

Council attempted to mitigate the issue by getting full council's approval for the DA on September 14, 2021. It was a 4-3 vote in favour with Crs Fitzpatrick, Bain, Nadin and Allen voting for and Crs Griff, Seckold and Dodds voting against approval.

A further appeal was lodged by SEFR and on October 15, 2021, Judge Moore of the Land and Environment Court of NSW ruled that the development consent dated September 14 in relation to land at Lot 16 DP 1066187 Edrom Road, was "invalid, void and of no force and effect".

At the council meeting on Wednesday, October 20 council will attempt to take further action to resolve the matter.

Council staff said building work undertaken under the original consent had been regularised by way of a Building Information Certificate and "does not form part of the current proposed development".

Council will now consider approval for the remainder of the work not yet begun on the timber hub.

Council staff are trying to disentangle the pros and cons of logging as an industry from the development consent.

In a report to council, BVSC director of community, environment and planning Alice Howe, said the proposed use of the mill additions did not include harvesting timber from forests

"The proposed development would not increase the total volumes of timber processed at the site; the mill additions would result in a re-purposing of a percentage of timber," Dr Howe said.