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Drake-Brockman v Minister for Planning

Drake-Brockman v Minister for Planning

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Case Copied 13 August 2007 72 min read

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Land and Environment Court

of New South Wales

CITATION: Drake-Brockman v Minister for Planning & Anor [2007] NSWLEC 490

PARTIES:
APPLICANT
Matthew Drake-Brockman
FIRST RESPONDENT
Minister for Planning
THIRD RESPONDENT
Frasers Broadway Pty Ltd

FILE NUMBER(S): 40186 of 2007

CORAM: Jagot J

KEY ISSUES: Judicial Review :- approval of concept plan under Pt 3A of EPA Act - whether approval invalid - Director-General's requirements - consultation - whether Director-General's report included a statement relating to compliance - whether Minister failed to consider ecologically sustainable development - application dismissed

LEGISLATION CITED: Environmental Planning and Assessment Act 1979
Environmental Planning and Assessment Amendment (Infrastructure and Other Planning Reform) Act 2005
Environmental Planning Legislation Amendment Act 2006
Land and Environment Court Act 1979
Protection of the Environment Administration Act 1991
Environmental Planning and Assessment Regulation 2000

CASES CITED: Associated Provincial Picture Houses Limited v Wednesbury Corporation [1948] 1 KB 223;
Attorney-General for the State of New South Wales v Quin (1990) 170 CLR 1 ;
Attorney-General (NSW); ex rel Franklins Stores Pty Ltd v Lizelle Pty Ltd (1977) 2 NSWLR 955 ;
Attorney General v JN Perry Constructions Pty Ltd (1961) 6 LGRA 385 ;
Australian Broadcasting Corporation v Redmore Pty Limited (1989) 166 CLR 454;
Avon Downs Pty Ltd v The Federal Commissioner of Taxation (1949) 78 CLR 353 ;
Belmorgan Property Development Pty Ltd v GPT Re Ltd & Anor [2007] NSWCA 171 ;
Belongil Progress Association v Byron Shire Council (1999) 106 LGERA 202 ;
Bentley v BGP Properties Pty Ltd (2006) 145 LGERA 234;
BGP Properties Pty Ltd v Lake Macquarie City Council (2004) 138 LGERA 237 ;
Bruce v Cole (1998) 45 NSWLR 163 ;
Cartier Holdings Pty Ltd v Newcastle City Council (2001) 115 LGERA 407;
Centro Properties Limited v Hurstville City Council (2004) 135 LGERA 257 ;
Chisholm v Pittwater Council & Anor [2001] NSWCA 104 ;
CIC Insurance Limited v Bankstown Football Club Limited (1997) 187 CLR 384;
Commissioner of Inland Revenue v Maple & Co (Paris) Ltd [1908] AC 22;
Concrete Constructions (NSW) Pty Ltd v Nelson (1990) 169 CLR 594;
Currey v Sutherland Shire Council (2003) 129 LGERA 223;
Foster v Minister for Customs and Justice (2000) 200 CLR 442 ;
Gray v The Minister for Planning & Ors (2006) 152 LGERA 258;
Hill v Woollahra Municipal Council (2003) 127 LGERA 7;
Hunter Resources Limited v Melville (1988) 164 CLR 234;
Kindimindi Investments Pty Ltd v Lane Cove Council (2006) 143 LGERA 277 ;
Leichhardt Municipal Council v Minister for Planning (1992) 78 LGERA 306;
Minister for Aboriginal Affairs v Peko-Wallsend Limited (1986) 162 CLR 24;
Minister for Environment and Heritage v Queensland Conservation Council Inc (2004) 139 FCR 24 ;
Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611;
Minister for Local Government v South Sydney City Council (2002) 55 NSWLR 381 ;
Murrumbidgee Ground Water Preservation Association v Minister for Natural Resources [2004] NSWLEC 122 ;
Newcastle City…

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: [2007] NSWLEC 490
Decision Date: 13 August 2007

CaseChat Overview and Summary

In Drake-Brockman v Minister for Planning, the applicant, Matthew Drake-Brockman, challenged the approval by the Minister for Planning of a concept plan for the redevelopment of the former Carlton United Breweries site at Chippendale under Part 3A of the Environmental Planning and Assessment Act 1979. The applicant raised three grounds for the invalidity of the Minister's approval, which were rejected by Jagot J of the Land and Environment Court of New South Wales. The first ground claimed that the Director-General of the Department of Planning breached the time stipulation in section 75F(2) of the EPA Act and an obligation to consult relevant public authorities in section 75F(4) in connection with the preparation of environmental assessment requirements for the project. The court found that the Director-General had sufficient information to prepare the requirements and had consulted relevant public authorities. The second ground claimed that the Director-General's report on the project to the Minister did not include a statement relating to compliance with the environmental assessment requirements under section 75I(2)(g) of the EPA Act, as required by the amended provision. The court held that the whole report addressed the substance of the requirements and that the Minister considered the statement. The third ground claimed that the Minister failed to consider ecologically sustainable development, including the precautionary principle and inter-generational equity, when granting the approval. The court held that the Minister had considered ecologically sustainable development and its principles and programs as relevant to the project, and that the applicant had not established that the Minister could only consider ecologically sustainable development by considering a quantitative assessment of greenhouse gas emissions or that the Minister in fact failed to consider ecologically sustainable development, apply the precautionary principle, or consider inter-generational equity as relevant to the project. Consequently, the Class 4 application was dismissed, and costs may be argued.

Orders