Huntlee Pty Ltd v Sweetwater Action Group Inc

The case of *Huntlee Pty Ltd v Sweetwater Action Group Inc* involved an appeal to the Court of Appeal of New South Wales concerning a challenge brought by the Sweetwater Action Group Inc (Sweetwater) in the Land and Environment Court. Sweetwater had challenged the Minister's decision to recommend amendments to a State Environmental Planning Policy (SEPP) and the validity of the SEPP itself. Huntlee Pty Ltd and the Minister for Planning and Infrastructure were the other parties involved.

The central legal issues before the Court of Appeal were whether the Minister's recommendation decision failed to comply with the requirements of an existing SEPP, specifically by taking into account an irrelevant consideration, namely a voluntary planning agreement. This agreement was purportedly made under section 93F of the *Environmental Planning and Assessment Act 1979* (NSW). The court also had to determine whether this voluntary agreement provided for a "suitable means of enforcement" of a development contribution, as required by section 93F(3)(g) of the Act, and whether the existence of such suitable means of enforcement constituted a jurisdictional fact. Furthermore, the court considered whether non-compliance with an existing SEPP would render the Minister's recommendation decision invalid, and whether the status of the recommendation decision affected the validity of the amending SEPP, including whether a Ministerial recommendation was a precondition to the exercise of the statutory power to make a SEPP.

The Court of Appeal allowed the appeals, setting aside the orders made by the primary judge in the Land and Environment Court. The court reasoned that the Minister's recommendation decision did not fail to comply with the requirements of the existing SEPP. It was held that the voluntary planning agreement did provide for suitable means of enforcement, and that this was not a jurisdictional fact that would invalidate the decision. The court found that the Minister had not taken into account an irrelevant consideration and that the amending SEPP was validly made.

Consequently, the Court of Appeal ordered that Sweetwater's summons in the Land and Environment Court be dismissed. Sweetwater was ordered to pay the costs of the Minister and Huntlee in the Land and Environment Court proceedings, as well as the costs of the appeals. Sweetwater was also granted a certificate under the *Suitors Fund Act 1951* for the costs of the appeals, subject to qualification.