Diamond v Minister for Planning New South Wales

[2004] NSWLEC 84

Land and Environment Court

of New South Wales

CITATION:

Diamond v Minister for Planning New South Wales and Another [2004] NSWLEC 84

PARTIES:

APPLICANT
Neville Diamond

FIRST RESPONDENT
Minister for Planning New South Wales

SECOND RESPONDENT
Dixon Sand (Penrith) Pty Ltd

FILE NUMBER(S):

10206 of 2003

CORAM:

Talbot J

KEY ISSUES:

Evidence :- admissibility - rejected on grounds of relevance - allegation of fraud not particularised

LEGISLATION CITED:

Environmental Planning and Assessment Act 1979

CASES CITED:

Banque Commerciale SA, En Liquidation v Akhil Holdings Limited (1990) 169 CLR 279;
Minister Administering the Crown Lands (Consolidation) Act and Western Lands Act and Others v Tweed Byron Aboriginal Land Council (1990) 71 LGRA 201

DATES OF HEARING:

10/03/2004

EX TEMPORE
JUDGMENT DATE :

03/10/2004

LEGAL REPRESENTATIVES:

APPLICANT
In Person
SOLICITORS
N/A

FIRST RESPONDENT
Mr M J Leeming (Barrister)
SOLICITORS
Department of Infrastructure Planning and Natural Resources

SECOND RESPONDENT
Mr P R Clay (Barrister)
SOLICITORS
Astley Thompson Cox

JUDGMENT:

IN THE LAND AND

ENVIRONMENT COURT

OF NEW SOUTH WALES

10206 of 2003

Talbot J

10 March 2003

Neville Diamond

Applicant
v

Minister for Planning New South Wales

First Respondent

Dixon Sand (Penrith) Pty Ltd

Second Respondent

Judgment

Introduction

1 HIS HONOUR: Mr Diamond seeks to rely on affidavit evidence purporting to show that as a consequence of an alleged financial arrangement, the details of which are vague, with a person or persons who are not specifically identified, the present applicant for development consent was given a favourable indication by the Department of Planning in respect of applications for approvals at Maroota in order to balance perceived injustice suffered by the company as a consequence of the claimed corruption of Baulkham Hills Shire Council (“the council”).

2 Mr Diamond says that he was told a representative of the second respondent “had organised two green lights” and had been given verbal approval for two development consents. The relevant approvals are not specified. The issue is not directly raised by the amended Statement of Issues or the additional Statement of Issues. However, Mr Diamond asserts that the evidence supports his allegation that there is a total systems failure in the Department of Planning. Support in respect of that issue, in my view, is most unlikely. Moreover, the evidence was only made available to the respondents in its present form in the last few days. The evidence lacks the degree of specificity expected for such serious allegations (Minister Administering the Crown Lands (Consolidation) Act and Western Lands Act and Others v Tweed Byron Aboriginal Land Council (1990) 71 LGRA 201 and Banque Commerciale SA, En Liquidation v Akhil Holdings Limited (1990) 169 CLR 279). Furthermore, it is not in a proper form.

3 Prima facie, Mr Diamond has raised matters which may be regarded as being of major public interest and importance. However, that is not the determinative factor in class 1 proceedings where relevance is the primary test of admissibility given that the rules of evidence do not apply.

4 The Court exercises the role of the decision maker in a class 1 appeal. It must make its own decisions unfettered by any predetermined attitude by the statutory consent authority. The decision must have regard to, and take into consideration, those matters dictated by the Environmental Planning and Assessment Act 1979 and the Regulation and relevant planning instruments.

5 Initially I inquired from the parties whether the allegations, if proved, could influence the Court in making a determination whether the agreement reached between the first and second respondent that consent orders be made was based upon the Minister, as the consent authority, taking into account an irrelevant consideration, namely the alleged historical conduct of the council in respect of sand mining at Maroota. I am satisfied that any agreement between the first and second respondent has no role to play in the Court’s determination.

6 Mr Diamond is a third party objector who has exercised his statutory right of appeal. Although in the hearing process and case management the parties are generally confined to the specific issues raised, nevertheless the Court is entitled, and must, take into account all of the relevant matters pertaining to the exercise of the consent authority’s discretion de novo.

7 The appeal by Mr Diamond sets aside any agreement between the other parties insofar as such an agreement could dictate the result of the appeal. It is not a relevant consideration in the determination of the application for consent by the Court. Accordingly, in addition to the formal matters of objection to the admissibility of the evidence there is a serious question of relevance.

8 Even if the material or subject matter was considered to be relevant, having regard to its gravity, the failure to provide evidence in an acceptable form, the omission of the direct allegations from the Statements of Issues, which were the subject of extreme refinement, debate and directions by the Chief Judge at the interlocutory stage of the proceedings and by me during the course of this hearing, and the late service of the evidence (which I should note appears to relate to events some time in 2000 which were at all times within the knowledge of Mr Diamond) all dictate the evidence should be rejected.

9 I am satisfied the matters raised are not sufficiently relevant to what the Court must decide to be admitted into evidence. Particularly in their present form.

10 The affidavit sworn by Mr Diamond on 26 February 2004 is rejected for the reasons I have outlined. Nevertheless, the Court is concerned to point out that the allegations raised by Mr Diamond are not necessarily unimportant or irrelevant to other matters in the context of sand mining approvals at Maroota. The simple fact I am deciding is that this is not the appropriate forum. If Mr Diamond wishes to pursue the matter elsewhere then nothing I have said should be seen as seeking to deter him from that course.