Land and Environment Court
of New South Wales
CITATION: Dates v NSW Minister for Planning [2009] NSWLEC 38 PARTIES: APPLICANT:
Worimi DatesFIRST RESPONDENT:
SECOND RESPONDENT:
NSW Minister for Planning
NSW Roads and Traffic AuthorityFILE NUMBER(S): 40026 of 2009 CORAM: Biscoe J KEY ISSUES: JUDICIAL REVIEW :- Constitutional law - whether s 75U(1)(d) of Environmental Planning and Assessment Act (1979) (NSW) and conditions of approval of a project under Part 3A breach or fail to comply with ss 9 and 10 of Racial Discrimination Act 1975 (Cth) and are consequently invalid under s 109 of Commonwealth Constitution. LEGISLATION CITED: Commonwealth of Australia Constitution Act 1900, s 109
Environmental Planning and Assessment Act 1979, ss 75H, 75J, 75U(1), Pt 3A
Heritage Act 1977, s 139
National Parks and Wildlife Act 1974, ss 5, 87 and 90
Racial Discrimination Act 1975 (Cth), ss 6A(1), 7, 9, 8 and 10, scheduleCASES CITED: Anderson v Director-General, Department of Environment and Conservation [2006] NSWLEC 12, (2006) 144 LGERA 43
Broad Henry v Director-General, Department of Environment and Conservation [2007] NSWLEC 722, (2007) 159 LGERA 172
Clyde Engineering Co Ltd v Cowburn (1926) 37 CLR 466
Country Energy v Williams [2005] NSWCA 318, (2005) 141 LGERA 426, (2005) 63 NSWLR 699
Gerhardy v Brown (1984-1985) 159 CLR 70
Kartinyeri v Commonwealth [1998] HCA 22, (1998) 195 CLR 337
Mabo v Queensland (1988) 166 CLR 186
R v Licensing Court of Brisbane; Ex parte Daniell (1920) 28 CLR 23
Telstra Corporation v Worthing [1999] HCA 12, (1999) 197 CLR 61
Victoria v Commonwealth (1937) 58 CLR 618
Western Australia v Ward [2002] HCA 28, (2002) 213 CLR 1DATES OF HEARING: 19 - 20 March 2009
DATE OF JUDGMENT:
6 April 2009LEGAL REPRESENTATIVES: APPLICANT:
Mr A Oshlack, agent
SOLICITORS
N/AFIRST RESPONDENT:
Mr J G Renwick
SOLICITORS
Crown Solicitor's OfficeSECOND RESPONDENT:
Mr A Galasso SC
SOLICITORS
Blake Dawson
JUDGMENT:
THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES
BISCOE J
6 April 2009
40026 of 2009
JUDGMENTWORIMI DATES v NSW MINISTER FOR PLANNING & ANOR
1 HIS HONOUR: On 9 July 2007 the NSW Minister for Planning (the first respondent) granted conditional Approval to the Roads and Traffic Authority (RTA) (the second respondent) under s 75J of the Environmental Planning and Assessment Act 1979 (EPA Act) for the construction of a dual carriage highway bypass to the east of Bulahdelah. Earlier, the development had been declared to be a project to which Part 3A (ss 75A to 75ZA) of the EPA Act applied.
2 The applicant claims that s 75U(1)(d) of the EPA Act, and conditions 2.9 to 2.14 of the Approval breach or are inconsistent with ss 9 and 10 of the Racial Discrimination Act 1975 (Cth) (RD Act) and, consequently, are invalid by operation of s 109 of the Commonwealth Constitution.
3 By s 75U(1)(d), a s 75J approved project does not require a permit…
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