Endangered frogs inspire council vs developer court case

Endangered froglets have sparked a battle between the council and a developer. (This is not an endangered frog, but we couldn't resist).
Endangered froglets have sparked a battle between the council and a developer. (This is not an endangered frog, but we couldn't resist). Contributed: Chris Otto

A COLONY of endangered frogs is at the centre of a long-running court battle between a major Tweed developer and the local council.

The lawsuit, which is currently before the NSW Supreme Court, stems from stormwater drainage issues at a 27ha Kingscliff block, owned by Gales Holdings.

The court heard the graveman of Gales' complaint was that the stormwater runoff that flowed onto the land caused substantial "wetting up", which from about 1999, provided a habitat for the protected Wallum froglet.

As a result, Gales was forced to set aside part of the land as a perpetual habitat, a condition the company says, resulted in a significant diminution of land value.

In March, 2011, the Chief Judge in Equity found that from about May 2004, the council had been and continued to be guilty of nuisance by discharging untreated stormwater from its drains onto the land and awarded Gales $600,000 in damages.

The council was also ordered to pay 30% of Gales' costs of treating the stormwater runoff, if the company was required to maintain a habitat for the frog.

Another $150,000 was awarded to Gales for the costs of expert advice associated with the building of the drain and the council was ordered to pay 75% of the court costs.

What followed was an appeal from Gales - calling for the court determine how much the land value had diminished since the frogs moved in and a cross appeal from the Tweed Shire Council.

Ultimately the Court of Appeal ruled that while the council had "committed nuisance" from before 1999, the arrival of the Wallum froglets on the land was not reasonably foreseeable as a consequence the council was not liable for damages.

The court found the head damages relating to the 2004 drainage works should still stand but the order for council to pay $600,000 in damages was set aside.

Topics:  kingscliff tweed shire council

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