LDF Enterprise Pty Ltd v State of New South Wales

LDF Enterprise Pty Ltd (the applicant) sought declaratory and injunctive relief against the State of New South Wales (the respondent) concerning the threatened exercise of powers under section 166 of the *Protection of the Environment Operations Act 1997* (NSW). The applicant contended that the respondent's proposed entry onto its land for investigative purposes would breach the rules of procedural fairness. The matter came before the Court of Appeal of New South Wales, constituted by Basten, Macfarlan and Leeming JJA.

The primary legal issues before the Court were whether the power of entry conferred by section 166 of the *Protection of the Environment Operations Act 1997* (NSW) attracted an obligation to accord procedural fairness to a landowner, and if so, whether the statutory provisions clearly displaced such an obligation. A further jurisdictional question arose as to whether the claim for declaratory and injunctive relief concerning the threatened entry fell within the exclusive jurisdiction of the Land and Environment Court, as stipulated by section 71 of the *Land and Environment Court Act 1979* (NSW).

The Court of Appeal determined that the claim brought by LDF Enterprise was within the exclusive jurisdiction of the Land and Environment Court. Consequently, the Supreme Court lacked the jurisdiction to hear the matter. The Court reasoned that the statutory scheme, particularly section 166 of the *Protection of the Environment Operations Act 1997* (NSW), did not create an obligation to accord procedural fairness in the context of exercising powers of entry for investigation. The legislative intent was to permit such entries without requiring prior notice or an opportunity for the landowner to be heard.

Accordingly, the Court of Appeal dismissed the appeal and the statement of claim. LDF Enterprise was ordered to pay the State's costs in the Court of Appeal, including reserved costs, and the defendants' costs at first instance. Leave to appeal was granted.