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4nature Incorporated v Centennial Springvale Pty Ltd

4nature Incorporated v Centennial Springvale Pty Ltd

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Case Copied 2 August 2017 64 min read

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Court of Appeal

Supreme Court

New South Wales

Summary available
Amendment notes

Medium Neutral Citation: 4nature Incorporated v Centennial Springvale Pty Ltd [2017] NSWCA 191
Hearing dates: 31 May 2017
Decision date: 02 August 2017
Before: Beazley P at [1];
Basten JA at [2];
Leeming JA at [89]
Decision:
(1) Allow the appeal and set aside the order of the Land and Environment Court made on 13 September 2016 dismissing the amended summons dated 24 February 2016.
(2) Order that the respondents to the appeal pay the costs of the appellant in this Court.
Catchwords:
ADMINISTRATIVE LAW – challenge to validity of State significant development consent for proposed extension of Springvale coal mine – consent authority’s satisfaction that development would have “a neutral or beneficial effect” on water quality required – whether consent authority’s approach valid

ENVIRONMENT AND PLANNING – challenge to validity of State significant development consent for proposed extension of Springvale coal mine – development must have “a neutral or beneficial effect” on water quality under State Environment Planning Policy (Sydney Drinking Water Catchment) 2011 (NSW) cl 10(1) – nature of comparison required
STATUTORY INTERPRETATION – delegated legislation – no general principle requiring laxity or flexibility in construction – adherence to basic principles of statutory construction – focus on text and context
Legislation Cited: Environmental Planning and Assessment Act 1979 (NSW), ss 23B, 23D, 23F, 34B, 75W, 79C, 89C, 89D, 89E, 89H, 89L; Div 1 Pt 3; Div 4.1; Pt 4
Mining Act 1992 (NSW), s 73
State Environmental Planning Policy (Mining, Petroleum Production and Extractive Industries) 2007 (NSW), cl 7
State Environmental Planning Policy (State and Regional Development) 2011 (NSW), cll 5, 8; Sch 1
State Environmental Planning Policy (Sydney Drinking Water Catchment) 2011 (NSW), cll 4, 10
Water NSW Act 2014 (NSW), Pt 4
Cases Cited: Buck v Bavone (1976) 135 CLR 110; [1976] HCA 24.
Day v Harness Racing New South Wales (2014) 88 NSWLR 594; [2014] NSWCA 423
Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611; [1999] HCA 21
Tovir Investments Pty Ltd v Waverly Council [2014] NSWCA 379
Woolworths Ltd v Pallas Newco Pty Ltd (2004) 61 NSWLR 707; [2004] NSWCA 422
Texts Cited:
“Neutral or Beneficial Effect on Water Quality Assessment Guideline 2011”, Government Gazette (NSW), No 6 (21 January 2011), p 182

“Neutral or Beneficial Effect on Water Quality Assessment Guideline 2015”, Government Gazette (NSW), No 13 (20 February 2015), p 429
Instrument of Delegation (14 September 2011), NSW Government Gazette (NSW) No 95 (28 September 2011), p 5682
Category: Principal judgment
Parties: 4nature Incorporated (Appellant)
Centennial Springvale Pty Ltd (First Respondent)
Springvale SK Kores Pty Ltd (Second Respondent)
Minister for Planning (Third Respondent)
Representation:
Counsel:
Mr R Lancaster SC / Mr N Kelly (Appellant)
Mr N J Williams SC / Ms J E Davidson (First and Second Respondents)
Mr J Hutton (Third Respondent)
Solicitors:
EDO NSW (Appellant)
Ashurst (First and Second Respondents)
Department of Planning and Environment (Third Respondent)

File Number(s):

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2017] NSWCA 191
Decision Date: 02 August 2017

CaseChat Overview and Summary

4nature Incorporated (appellant) challenged the validity of a State significant development consent granted to Centennial Springvale Pty Ltd (respondent) for the proposed extension of the Springvale coal mine. The core of the dispute concerned whether the consent authority had correctly applied the requirements of clause 10(1) of the State Environmental Planning Policy (Sydney Drinking Water Catchment) 2011 (NSW), which mandated that the development must have a "neutral or beneficial effect" on water quality. The matter was heard in the Court of Appeal of New South Wales.

The primary legal issue before the Court of Appeal was to determine the proper interpretation of the phrase "neutral or beneficial effect" as it applied to the proposed development's impact on water quality. This involved considering the nature of the comparison required by the clause and whether the consent authority's assessment and satisfaction of this requirement were legally valid. The Court also considered principles of statutory interpretation in relation to delegated legislation.

The Court of Appeal found that the consent authority had erred in its interpretation and application of clause 10(1). It held that the clause required a comparison between the water quality that would result from the development and the water quality that would exist in the absence of the development. The Court rejected the interpretation that the clause merely required the development to not worsen existing water quality. Applying this interpretation, the Court concluded that the consent authority had not been satisfied that the development would have a neutral or beneficial effect on water quality.

Consequently, the Court of Appeal allowed the appeal, set aside the order of the Land and Environment Court that had dismissed the appellant's summons, and ordered the respondent to pay the appellant's costs in the Court of Appeal.

Orders

Orders of the court

(1) Allow the appeal and set aside the order of the Land and Environment Court made on 13 September 2016 dismissing the amended summons dated 24 February 2016.

(2) Order that the respondents to the appeal pay the costs of the appellant in this Court.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	4nature Incorporated v Centennial Springvale Pty Ltd [2017] NSWCA 191
Hearing dates:	31 May 2017
Decision date:	02 August 2017
Before:	Beazley P at [1]; Basten JA at [2]; Leeming JA at [89]
Decision:	(1) Allow the appeal and set aside the order of the Land and Environment Court made on 13 September 2016 dismissing the amended summons dated 24 February 2016. (2) Order that the respondents to the appeal pay the costs of the appellant in this Court.
Catchwords:	ADMINISTRATIVE LAW – challenge to validity of State significant development consent for proposed extension of Springvale coal mine – consent authority’s satisfaction that development would have “a neutral or beneficial effect” on water quality required – whether consent authority’s approach valid ENVIRONMENT AND PLANNING – challenge to validity of State significant development consent for proposed extension of Springvale coal mine – development must have “a neutral or beneficial effect” on water quality under State Environment Planning Policy (Sydney Drinking Water Catchment) 2011 (NSW) cl 10(1) – nature of comparison required STATUTORY INTERPRETATION – delegated legislation – no general principle requiring laxity or flexibility in construction – adherence to basic principles of statutory construction – focus on text and context
Legislation Cited:	Environmental Planning and Assessment Act 1979 (NSW), ss 23B, 23D, 23F, 34B, 75W, 79C, 89C, 89D, 89E, 89H, 89L; Div 1 Pt 3; Div 4.1; Pt 4 Mining Act 1992 (NSW), s 73 State Environmental Planning Policy (Mining, Petroleum Production and Extractive Industries) 2007 (NSW), cl 7 State Environmental Planning Policy (State and Regional Development) 2011 (NSW), cll 5, 8; Sch 1 State Environmental Planning Policy (Sydney Drinking Water Catchment) 2011 (NSW), cll 4, 10 Water NSW Act 2014 (NSW), Pt 4
Cases Cited:	Buck v Bavone (1976) 135 CLR 110; [1976] HCA 24. Day v Harness Racing New South Wales (2014) 88 NSWLR 594; [2014] NSWCA 423 Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611; [1999] HCA 21 Tovir Investments Pty Ltd v Waverly Council [2014] NSWCA 379 Woolworths Ltd v Pallas Newco Pty Ltd (2004) 61 NSWLR 707; [2004] NSWCA 422
Texts Cited:	“Neutral or Beneficial Effect on Water Quality Assessment Guideline 2011”, Government Gazette (NSW), No 6 (21 January 2011), p 182 “Neutral or Beneficial Effect on Water Quality Assessment Guideline 2015”, Government Gazette (NSW), No 13 (20 February 2015), p 429 Instrument of Delegation (14 September 2011), NSW Government Gazette (NSW) No 95 (28 September 2011), p 5682
Category:	Principal judgment
Parties:	4nature Incorporated (Appellant) Centennial Springvale Pty Ltd (First Respondent) Springvale SK Kores Pty Ltd (Second Respondent) Minister for Planning (Third Respondent)
Representation:	Counsel: Mr R Lancaster SC / Mr N Kelly (Appellant) Mr N J Williams SC / Ms J E Davidson (First and Second Respondents) Mr J Hutton (Third Respondent) Solicitors: EDO NSW (Appellant) Ashurst (First and Second Respondents) Department of Planning and Environment (Third Respondent)
File Number(s):