Kennedy v NSW Minister for Planning - [2010] NSWLEC 240

Land and Environment Court

of New South Wales

CITATION: Kennedy v NSW Minister for Planning [2010] NSWLEC 240

PARTIES:
APPLICANT:
Roy "Dootch" Kennedy on behalf of the Sandon Point Aboriginal Tent Embassy
FIRST RESPONDENT:
NSW Minister for Planning
SECOND RESPONDENT:
Stockland Developments Pty Ltd

FILE NUMBER(S): 40742 of 2010

CORAM: Biscoe J

KEY ISSUES: JUDICIAL REVIEW :- validity of approvals of modifications of project approvals under Part 3A Environmental Planning and Assessment Act 1979 - Minister under duty to consider the public interest - whether Minister breached duty by allegedly failing to consider protection of Aboriginal heritage as recommended in three reports, Aboriginal artefacts and principles of ecologically sustainable development - whether approval of modifications manifestly unreasonable - whether Minister denied applicant procedural fairness

LEGISLATION CITED: Environmental Planning and Assessment Act 1979, ss 75I, 75J, 75W, 96
Environmental Planning and Assessment Amendment (Infrastructure and Other Planning Reform) Act 2005
Environmental Planning and Assessment Regulation 2000, cl 8G
Land and Environment Court Rules 2007, r 4.7
National Parks and Wildlife Act 1974, ss 69B - 69F, 84, 86, 90
Protection of the Environment Administration Act 1991, s 6(2)
State Environmental Planning Policy (Major Development) 2005

CASES CITED: Calardu Penrith Pty Ltd v Penrith City Council [2010] NSWLEC 50
Carriage v Stockland (Constructors) Pty Ltd & Ors [2002] NSWLEC 216
Carriage v Stockland Development Pty Ltd & Ors [No 6] [2004] NSWLEC 541
Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576
Kennedy v NSW Minister for Planning [2010] NSWLEC 129
Kennedy v NSW Minister for Planning [2010] NSWLEC 177
Kioa v West (1985) 159 CLR 550
Minister for Planning v Walker [2008] NSWCA 224, 161 LGERA 423
Parks and Playgrounds Movement Inc v Newcastle City Council [2010] NSWLEC 231
Roy Kennedy v Director-General of the Department of Environment and Conservation [2006] NSWLEC 456
SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63, 228 CLR 152
Tubbo Pty Ltd v Minister Administering the Water Management Act 2000 [2008] NSWCA 356
Walker v Minister for Planning [2007] NSWLEC 741, 157 LGERA 124
Walsh v Parramatta City Council [2007] NSWLEC 255, 161 LGERA 118

DATES OF HEARING: 13-15 October 2010

DATE OF JUDGMENT:
19 November 2010

LEGAL REPRESENTATIVES: APPLICANT:
Mr Alan Oshlack, agent

FIRST RESPONDENT:
Dr J Renwick
SOLICITORS
NSW Department of Planning
SECOND RESPONDENT:
Mr J Robson SC with Mr H El-Hage
SOLICITORS
Herbert Geer

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

BISCOE J

19 November 2010

40742 of 2010

KENNEDY v NSW MINISTER FOR PLANNING & ANOR

CONTENTS

Paragraphs

INTRODUCTION………………………………………………….1-7

THE MODIFICATIONS………………………………………….8-15

THE STATUTORY REGIME…………………………………..16-19

BACKGROUND…………………………………………………20-53

GROUND 2: FAILURE TO CONSIDER ABORIGINAL
ARTEFACTS…………………………………………………….69-75

GROUND 3: FAILURE TO CONSIDER PRINCIPLES OF
ECOLOGICALLY SUSTAINABLE DEVELOPMENT………..76-90

GROUND 4: MANIFEST UNREASONABLENESS………….91-94

GROUND 5: DENIAL OF PROCEDURAL FAIRNESS…….95-113

INTRODUCTION

1 HIS HONOUR: Sandon Point is a 53 hectare coastal plain 14 kilometres north of…

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: [2010] NSWLEC 240
Decision Date: 19 November 2010

CaseChat Overview and Summary

The Land and Environment Court of New South Wales was called upon to decide the validity of two modification approvals of a major project approval under the Environmental Planning and Assessment Act 1979. The modifications related to the development of a 23.35 hectare site at Sandon Point by Stockland Developments Pty Ltd. The applicant, Roy "Dootch" Kennedy, on behalf of the Sandon Point Aboriginal Tent Embassy, challenged the validity of the modification approvals on several grounds, including the failure to consider the protection of Aboriginal cultural heritage, failure to consider Aboriginal artefacts, failure to consider principles of ecologically sustainable development, manifest unreasonableness, and denial of procedural fairness. The court examined each ground of challenge and concluded that none of the grounds were valid. The court held that the Minister for Planning had considered the relevant matters, including Aboriginal cultural heritage and principles of ecologically sustainable development, in approving the modifications. The court also found that the modifications were not manifestly unreasonable and that procedural fairness was observed in the decision-making process. The court dismissed the application and reserved costs, allowing for a potential application for costs by the applicant within seven days of the judgment.

Orders