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Reported Decision: 126 LGERA 408
Land and Environment Court
of New South Wales
CITATION: Mandalong Progress Inc. v Minister For Planning And Anor. [2003] NSWLEC 141 PARTIES: APPLICANT:
RESPONDENTS:
Mandalong Progress Inc.
Minister For Planning And Anor.FILE NUMBER(S): 40510 of 2002 CORAM: Bignold J KEY ISSUES: Development Consent :- alleged breach of condition by Director-General-whether claim is justiciable as a breach of the Act. LEGISLATION CITED: Environmental Planning and Assessment Act 1979, s 122, s 124 CASES CITED: Building Owners and Managers Association of Australia v Sydney City Council (1984) 53 LGRA 54;
Donnelly v Delta Gold Pty Ltd (2001) 113 LGERA 34;
Enfield City Corporation v Development Assessment Commission (2000) 199 CLR 135 at 144;
F Hannan Pty Ltd v Electricity Commission of NSW No (3) (1985) 66 LGRA 306;
Port Stephens Council v Fidler (1997) 94 LGERA 298;
Rao v Canterbury City Council (2000) 112 LGERA 360;
Sydney City Council v Building Owners and Managers Association (1985) 2 NSWLR 383;
Payne v Mosman Municipal Council (2000) NSWLEC 25;
Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR 355;
Sahade v Mosman Municipal Council (2000) NSWCA 251;
Stubbs v NRMA Insurance Ltd (1997) 42 NSWLR 550DATES OF HEARING: 17-19/02/03, 25/02/03, 04/03/03, 12/03/03 DATE OF JUDGMENT:
06/18/2003LEGAL REPRESENTATIVES: RESPONDENTS:
APPLICANT:
Mr N Cotman SC with Mr Raphael, Barrister
SOLICITORS
The Hargraves Practice
Mr B Preston SC with Ms J Jagot, Barrister
SOLICITORS
Ms C Hanson, Solicitor Department of Urban Affairs and Planning
JUDGMENT:
IN THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES
Matter No . . 40510 of 2002
Coram : Bignold J
18 June 2003
MANDALONG PROGRESS ASSOCIATION INC.
Applicant
v
MINISTER FOR PLANNING
First Respondent
DIRECTOR-GENERAL OF URBAN AFAIRS AND PLANNING
Second Respondent
JUDGMENT
A. INTRODUCTION
1. By its further amended application filed in Court on 18 February 2003, the Applicant (the Progress Association) seeks declaratory and injunctive relief in respect of a condition of development consent granted by the first Respondent (the Minister) on 14 October 1998 for an extension to underground coal mining activities for the Cooranbong Colliery, now known as the Mandalong Valley Mine (the development consent) and in respect of the functions imposed by that condition upon the second Respondent (the Director-General).
2. Ultimately, the only relief claimed by the Progress Association is the following mandatory order, remedying what is claimed to be the existing and continuing, but remediable, breach of the relevant condition of the development consent:—
- An Order that the Director-General select a consultant to perform, and manage the performance of, a flood study to determine the 1:100 year flood, and further define the existing flood hazard and the potential future flood hazard resulting from mining, including public consultation and submission process.
3. The relevant condition of the development consent (Exhibit 1) is Condition 67 which provides as follows:
- 67. The Applicant shall participate in and contribute funds to the preparation of a flood study to determine the 1:100 year flood, and…
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- [2003] NSWLEC 141
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