Mandalong Progress Association Inc v Minister for Planning - [2003] NSWLEC 141

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:
Mandalong Progress Inc.
RESPONDENTS:
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 550

DATES OF HEARING: 17-19/02/03, 25/02/03, 04/03/03, 12/03/03

DATE OF JUDGMENT:
06/18/2003

LEGAL REPRESENTATIVES:

APPLICANT:
Mr N Cotman SC with Mr Raphael, Barrister
SOLICITORS
The Hargraves Practice
RESPONDENTS:
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

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…

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: [2003] NSWLEC 141
Decision Date: 06/18/2003

CaseChat Overview and Summary

Mandalong Progress Association Inc, the applicant, brought proceedings against the Minister for Planning and the Director-General of Urban Affairs and Planning in the Land and Environment Court of New South Wales. The applicant sought relief for the alleged breach of a condition of development consent. The condition required the applicant to participate in and contribute funds to the preparation 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. The respondents opposed the applicant's claims on two grounds, namely that there was no relevant default of compliance with the requirement of the condition, and that the condition did not impose any obligation on the Director-General that was either justiciable or legally enforceable. The court held that the applicant's claim was justiciable and legally enforceable, and that there was a relevant breach of the condition. The court found that the Director-General had failed to comply with the functions imposed upon her by the condition in respect of the preparation of the required flood study.

Orders