Dates v NSW Minister for Planning - [2009] NSWLEC 38

Land and Environment Court

of New South Wales

CITATION: Dates v NSW Minister for Planning [2009] NSWLEC 38

PARTIES:
APPLICANT:
Worimi Dates
FIRST RESPONDENT:
NSW Minister for Planning
SECOND RESPONDENT:
NSW Roads and Traffic Authority

FILE 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, schedule

CASES 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 1

DATES OF HEARING: 19 - 20 March 2009

DATE OF JUDGMENT:
6 April 2009

LEGAL REPRESENTATIVES:
APPLICANT:
Mr A Oshlack, agent
SOLICITORS
N/A
FIRST RESPONDENT:
Mr J G Renwick
SOLICITORS
Crown Solicitor's Office
SECOND 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

WORIMI DATES v NSW MINISTER FOR PLANNING & ANOR

JUDGMENT

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…

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.

Continue reading Dates v NSW Minister for Planning

Details

AGLC: Dates v NSW Minister for Planning [2009] NSWLEC 38
Case: [2009] NSWLEC 38
Decision Date: 6 April 2009

CaseChat Overview and Summary

In Dates v NSW Minister for Planning, Worimi Dates sought to challenge the validity of certain provisions in the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act) and conditions of approval for a project to construct a dual carriage highway bypass to the east of Bulahdelah. The applicant claimed 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. The applicant sought declarations and an order restraining the second respondent from carrying out any work or activity that may disturb, damage, move or destroy an Aboriginal object. The court found that s 75U(1)(d) of the EPA Act and conditions 2.9 to 2.14 of the Approval do not breach or are not inconsistent with ss 9 and 10 of the RD Act and no invalidity arises under s 109 of the Constitution. The summons was dismissed with costs reserved.

Orders