Hudson v Director General, Department of Environment, Climate Change and Water; Joly Pty Ltd v Director General, Department of Environment, Climate Change and Water

Hudson and Joly Pty Ltd (the applicants) sought judicial review of decisions made by the Director-General of the Department of Environment, Climate Change and Water (the respondent). The dispute concerned the respondent's refusal to grant development consent for two separate development applications. The applicants had sought consent for a residential subdivision and a commercial development, respectively, both of which were refused by the respondent.

The primary legal issue before the High Court was whether the respondent, in refusing the development applications, had failed to take into account a relevant consideration, namely the potential for the proposed developments to contribute to the protection of the environment. Specifically, the court considered the scope of the respondent's duty under section 79C(1)(b) of the *Environmental Planning and Assessment Act 1979* (NSW) to consider the likely effect of the proposed development on the environment.

Kiefel and Gageler JJ held that the respondent's reasons for refusal did not demonstrate that the potential environmental benefits of the proposed developments had been considered. The Court reasoned that while the respondent was entitled to refuse consent, the refusal must be based on a proper consideration of all relevant factors. The Court emphasised that the duty to consider the environment under section 79C(1)(b) requires more than a mere acknowledgement of environmental issues; it necessitates an assessment of how the proposed development might positively or negatively impact the environment. The Court found that the respondent's reasons for refusal were insufficient to demonstrate that this duty had been discharged.

The High Court allowed the appeals, set aside the decisions of the respondent, and remitted the applications for determination according to law.