Henry v Shellharbour City Council - [2005] NSWLEC 378

Land and Environment Court

of New South Wales

CITATION:
Henry and Others v Shellharbour City Council and Others [2005] NSWLEC 378

PARTIES:
APPLICANTS
Aaron Broad Henry
Stephen Henry
Roy Kennedy
FIRST RESPONDENT
Shellharbour City Council
SECOND RESPONDENT
Minister for Infrastructure Planning and Natural Resources
THIRD RESPONDENT
Director General of the Department of Infrastructure Planning and Natural Resources

FILE NUMBER(S):
40252 of 2005

CORAM:
Talbot J

KEY ISSUES:
Development Consent :- proper construction of condition in the context of the development consent as a whole - consent to be read in a common sense way that leads to a reasonable and practical result.
Conditions of consent:- whether complied with before commencement of construction.
Development consent:- whether lapsed - identification of engineering or construction work physically commenced.

LEGISLATION CITED:
Environmental Planning and Assessment Act 1979 s 76A(1)(a), s 95(4), s 96

CASES CITED:
Associated Provincial Picture Houses Limited v Wednesbury Corporation [1948] 1 KB 223 ;
Besmaw Pty Ltd v Sutherland Shire Council (2003) 127 LGERA 413 ;
Green v Kogarah Municipal Council (2001) 115 LGERA 231 ;
Hunter Development Brokerage Pty Ltd v Cessnock City Council; Tovedale Pty Ltd v Shoalhaven City Council [2005] NSWCA 169, unreported;
Iron Gates Developments Pty Limited v Richmond - Evans Environmental Society Inc (1992) 81 LGERA 132;
Lesnewski v Mosman Municipal Council (2005) 138 LGERA 207 ;
Timbarra Protection Coalition v Ross Mining NL (1999) 46 NSWLR 55

DATES OF HEARING: 21/06/2005, 22/06/2005, 23/06/2005

DATE OF JUDGMENT:

07/22/2005

LEGAL REPRESENTATIVES:
APPLICANTS
Mr A Oshlack (Agent)
SOLICITORS
N/A
FIRST RESPONDENT
Mr N J Williams SC
SOLICITORS
Blake Dawson Waldron
SECOND RESPONDENT
Mr P R Clay (Barrister)
SOLICITORS
Department of Infrastructure Planning and Natural Resources
THIRD RESPONDENT
Mr P R Clay (Barrister)
SOLICITORS
Department of Infrastructure Planning and Natural Resources

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Talbot J

22 July 2005

40252 of 2005 Henry and Others v Shellharbour City Council and Others
JUDGMENT

Introduction

1 Talbot J: On 26 November 1996 the Minister for Infrastructure Planning and Natural Resources (“the second respondent”) determined an application for development consent made by Shellharbour City Council (“the first respondent”) in respect of the construction of a 350 berth boatharbour/marina, wetland enlargement and enhancement, placement of contaminated landfill into a single engineered landfill cell and placement of an acoustic barrier, by the granting of consent subject to conditions. The consent was modified by the second respondent on 9 November 2001 and 6 September 2004.

2 The boatharbour/marina includes the construction of a 22 hectare boatharbour with breakwater and groynes, a 350 berth marina and the construction of a land platform.

3 The wetland enlargement in the Shadforth wetland is designed to compensate for the loss of a degraded swamp at Shellharbour and will provide a range of wetland habitats together with a strategic plan of management.

4 The landfill development will comprise the removal of contaminated landfill from the present Shellharbour swamp and placement within a series of engineered cells designed to provide landscaped…

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: [2005] NSWLEC 378
Decision Date: 07/22/2005

CaseChat Overview and Summary

In the Land and Environment Court, the applicants sought declaratory and injunctive relief in relation to the entitlement of Shellharbour City Council to rely upon the development consent granted by the Minister for Infrastructure Planning and Natural Resources. The applicants claimed that the consent had lapsed on 4 December 2001 and that the Council was in breach of certain provisions of the Environmental Planning and Assessment Act 1979. The applicants also alleged that the Council had failed to comply with certain conditions of the consent, including the requirement to consult with the local Aboriginal community and the National Parks and Wildlife Service. The applicants sought a declaration that the consent was invalid and that the Council was acting unlawfully in carrying out work on the development site. Talbot J held that the development consent had not lapsed and that the Council had complied with the conditions of the consent. The Court found that the pilot study carried out by the Council was a necessary step in the process of establishing the approved compensatory wetland development and that the commencement of the pilot study was relevant for the purpose of s 95(4) of the Act. The Court also found that the Council had complied with condition 15(b) of the consent by approving the Environmental Management Plan for the Shadforth wetland system before construction of the wetland system was commenced. The Court rejected the applicants' argument that the Council had failed to consult with the local Aboriginal community and the National Parks and Wildlife Service, finding that an opportunity was afforded to the Aboriginal community to participate in the process of the preparation and approval of the Environmental Management Plan through the committee process. The Court dismissed the claims for relief and reserved costs.

Orders