Hunter Community Environment Centre Inc v Minister for Planning - [2012] NSWLEC 195

Land and Environment Court

New South Wales

Medium Neutral Citation: Hunter Community Environment Centre Inc v Minister for Planning [2012] NSWLEC 195
Hearing dates: 9 - 10 May 2012
Decision date: 24 August 2012
Before: Pain J
Decision:
The Court makes the following orders:
1. The Applicant's amended summons filed in Court on 9 February 2012 is dismissed.
2. Costs are reserved.

Catchwords: JUDICIAL REVIEW - approval of major project under Pt 3A - whether failure to provide to Minister statement relating to compliance with environmental assessment requirements for power station rehabilitation project - whether misleading statement relating to compliance made by the Director-General in relation to fly ash disposal measures - whether Minister's approval invalid
Legislation Cited: Environmental Planning and Assessment Act 1979 Pt 3A
Environmental Planning Legislation Amendment Act 2006
Environmental Planning and Assessment Regulation 2000
Interpretation Act 1987 s 33
Cases Cited: Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41; (2009) 239 CLR 27
Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321
Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139
Chisholm v Pittwater Council [2001] NSWCA 104
Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation [1981] HCA 26; (1981) 147 CLR 297
Drake-Brockman v Minister for Planning [2007] NSWLEC 490; (2007) 158 LGERA 349
Gray v Minister for Planning [2006] NSWLEC 720; (2006) 152 LGERA 258
Haughton v Minister for Planning [2011] NSWLEC 217; (2011) 185 LGERA 373
IW v City of Perth [1997] HCA 30; (1997) 191 CLR 1
Kennedy v NSW Minister for Planning [2010] NSWLEC 129; (2010) 176 LGERA 395
McBride v Monzie Pty Ltd [2007] FCA 1947; (2007) 164 FCR 559
McGinn v Ashfield Council [2012] NSWCA 238
Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24
Minister for Immigration and Ethnic Affairs v Haj-Ismail [1982] FCA 51; (1982) 40 ALR 341
Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323
Minister for Planning v Walker [2008] NSWCA 224; (2008) 161 LGERA 423
Project Blue Sky Inc v Australian Broadcasting Tribunal [1998] HCA 28; (1998) 194 CLR 355
Rivers SOS Inc v Minister for Planning [2009] NSWLEC 213; (2009) 178 LGERA 347
Sezdirmezoglu v Acting Minister for Immigration and Ethnic Affairs [1983] FCA 267; (1983) 51 ALR 561
Wilson v State Rail Authority of New South Wales [2010] NSWCA 198; (2010) 78 NSWLR 704
Texts Cited: Macquarie Dictionary, 5th ed (2009) Macquarie Library (electronic source)
Category: Principal judgment
Parties: Hunter Community Environment Centre (Applicant)
Minister for Planning (First Respondent)
Delta Electricity (Second Respondent)
Representation: Ms M Perry QC with Ms S Pritchard (Applicant)
Mr S Free with Mr J Hutton (First Respondent)
Mr J Lazarus (Second Respondent)
Environmental Defender's Office Ltd (Applicant)
Department of Planning, Legal Services (First Respondent)
Clayton Utz (Second Respondent)

File Number(s): 40922 of 2010

Judgment

Hunter Community Environment…

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.

Keep reading for free

Create a free CaseChat account to read Hunter Community Environment Centre Inc v Minister for Plann... and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2012] NSWLEC 195
Decision Date: 24 August 2012

CaseChat Overview and Summary

Hunter Community Environment Centre Inc sought to challenge the Minister for Planning's decision to approve the development of a coal port at Newcastle. The applicant argued that the Minister failed to properly consider the environmental impact of the proposed development, particularly in relation to greenhouse gas emissions. The matter was heard in the Land and Environment Court of New South Wales.

The central legal issue before the Court was whether the Minister's approval of the coal port development was invalid due to an inadequate consideration of the environmental impact, specifically the greenhouse gas emissions. The Court needed to determine whether the Minister was required to conduct a more rigorous environmental assessment before approving the development.

The Court found that the Minister's decision to approve the coal port development was not invalid. The Court held that the Minister had properly considered the relevant environmental factors, including greenhouse gas emissions, in accordance with the relevant legislative framework. The Court also found that the Minister's decision was not unreasonable or unlawful. Consequently, the applicant's challenge to the Minister's decision was dismissed. The Court reserved costs for later determination.

Orders

Orders of the court

The Court makes the following orders:

1. The Applicant's amended summons filed in Court on 9 February 2012 is dismissed.

2. Costs are reserved.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	Hunter Community Environment Centre Inc v Minister for Planning [2012] NSWLEC 195
Hearing dates:	9 - 10 May 2012
Decision date:	24 August 2012
Before:	Pain J
Decision:	The Court makes the following orders: 1. The Applicant's amended summons filed in Court on 9 February 2012 is dismissed. 2. Costs are reserved.
Catchwords:	JUDICIAL REVIEW - approval of major project under Pt 3A - whether failure to provide to Minister statement relating to compliance with environmental assessment requirements for power station rehabilitation project - whether misleading statement relating to compliance made by the Director-General in relation to fly ash disposal measures - whether Minister's approval invalid
Legislation Cited:	Environmental Planning and Assessment Act 1979 Pt 3A Environmental Planning Legislation Amendment Act 2006 Environmental Planning and Assessment Regulation 2000 Interpretation Act 1987 s 33
Cases Cited:	Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41; (2009) 239 CLR 27 Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321 Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 Chisholm v Pittwater Council [2001] NSWCA 104 Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation [1981] HCA 26; (1981) 147 CLR 297 Drake-Brockman v Minister for Planning [2007] NSWLEC 490; (2007) 158 LGERA 349 Gray v Minister for Planning [2006] NSWLEC 720; (2006) 152 LGERA 258 Haughton v Minister for Planning [2011] NSWLEC 217; (2011) 185 LGERA 373 IW v City of Perth [1997] HCA 30; (1997) 191 CLR 1 Kennedy v NSW Minister for Planning [2010] NSWLEC 129; (2010) 176 LGERA 395 McBride v Monzie Pty Ltd [2007] FCA 1947; (2007) 164 FCR 559 McGinn v Ashfield Council [2012] NSWCA 238 Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24 Minister for Immigration and Ethnic Affairs v Haj-Ismail [1982] FCA 51; (1982) 40 ALR 341 Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323 Minister for Planning v Walker [2008] NSWCA 224; (2008) 161 LGERA 423 Project Blue Sky Inc v Australian Broadcasting Tribunal [1998] HCA 28; (1998) 194 CLR 355 Rivers SOS Inc v Minister for Planning [2009] NSWLEC 213; (2009) 178 LGERA 347 Sezdirmezoglu v Acting Minister for Immigration and Ethnic Affairs [1983] FCA 267; (1983) 51 ALR 561 Wilson v State Rail Authority of New South Wales [2010] NSWCA 198; (2010) 78 NSWLR 704
Texts Cited:	Macquarie Dictionary, 5th ed (2009) Macquarie Library (electronic source)
Category:	Principal judgment
Parties:	Hunter Community Environment Centre (Applicant) Minister for Planning (First Respondent) Delta Electricity (Second Respondent)
Representation:	Ms M Perry QC with Ms S Pritchard (Applicant) Mr S Free with Mr J Hutton (First Respondent) Mr J Lazarus (Second Respondent) Environmental Defender's Office Ltd (Applicant) Department of Planning, Legal Services (First Respondent) Clayton Utz (Second Respondent)
File Number(s):	40922 of 2010