Michael Ryan v Joint Regional Planning Panel - [2019] NSWLEC 21

Land and Environment Court

New South Wales

Medium Neutral Citation: Michael Ryan v Joint Regional Planning Panel [2019] NSWLEC 21
Hearing dates: 1 and 5 March 2019
Date of orders: 06 March 2019
Decision date: 06 March 2019
Jurisdiction: Class 4
Before: Robson J
Decision:
See orders at [45]

Catchwords: INTERLOCUTORY INJUNCTION – whether activity relying upon an allegedly invalid consent should be restrained – whether there is a serious question to be tried – whether the balance of convenience favours granting the injunction – injunction refused
Legislation Cited: Heritage Act 1977 (NSW) ss 136, 139
National Parks and Wildlife Act 1974 (NSW) s 90
State Environmental Planning Policy No 44—Koala Habitat Protection
Cases Cited: Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd (2001) 208 CLR 199; [2001] HCA 63
Australian Broadcasting Corporation v O’Neill (2006) 227 CLR 57; [2006] HCA 46
Beecham Group Limited v Bristol Laboratories Pty Limited (1968) 118 CLR 618
Beese v Woodhouse [1970] 1 WLR 586
Iseek Communications Pty Ltd v Jones [2017] NSWSC 251
Kolback Securities Ltd v Epoch Mining NL (1987) 8 NSWLR 533
Mekhail v Hana; Mekhail v Hana; In the Estate of Nadia Mekhail (No 2) [2017] NSWSC 1175
Patrick Stevedores Operations No 2 Pty Ltd v Maritime Union of Australia (No 3) (1998) 195 CLR 1; [1998] HCA 30
Positive Change for Marine Life Inc v Byron Shire Council (No 2) [2015] NSWLEC 157
SAI Global Property Division Pty Ltd (ACN 089 586 872) v Jones & Ors [2018] NSWSC 438
Samsung Electronics Co Ltd v Apple Inc (2011) 217 FCR 238; [2011] FCAFC 156
Shoalhaven City Council v Bridgewater Investments Pty Ltd [2010] NSWLEC 103
Tegra (NSW) Pty Ltd v Gundagai Shire Council [2007] NSWLEC 806; (2007) 160 LGERA 1
UP Australia Pty Ltd v McDonald & Anor [2018] NSWSC 218
Texts Cited: Meagher, Gummow & Lehane’s Equity: Doctrines and Remedies (5th ed 2014, LexisNexis Butterworths)
Category: Procedural and other rulings
Parties: Michael Ryan (Applicant)
Joint Regional Planning Panel (First Respondent)
Lismore City Council (Second Respondent)
Winten (No 12) Pty Ltd (Third Respondent)
W A Sexton (Fourth Respondent)
Glorbill Pty Ltd (Fifth Respondent)
Representation:
Counsel:
L Saw (Applicant)
P Clay SC (Third Respondent)
Solicitors:
A Oshlack, agent (Applicant)
Department of Planning and Environment (First Respondent)
Lismore City Council (Second Respondent)
Dentons (Third, Fourth and Fifth Respondents)

File Number(s): 2019/00006908
Publication restriction: Nil

Judgment

Before the Court is a notice of motion filed 28 February 2019 seeking urgent interlocutory relief.
On 7 January 2019, Michael Ryan (‘applicant’) commenced proceedings initially against the Joint Regional Planning Panel (‘first respondent’), Lismore City Council (‘second respondent’), and Winten (No 12) Pty Ltd (‘third respondent’) seeking declaratory and injunctive relief in relation to development consent granted by the Northern Regional Planning Panel on 17 October 2018 (‘the consent’). The consent relates to development comprising the sub-division of land at North Lismore to create 390 residential allotments, a local centre allotment, open space, and areas for environmental management.
In…

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: [2019] NSWLEC 21
Decision Date: 06 March 2019

CaseChat Overview and Summary

Michael Ryan, the applicant, filed a case against the Joint Regional Planning Panel, the respondent, seeking judicial review of a decision made by the respondent in relation to the approval of a development application. The case was heard in the Federal Court of Australia.

The central legal issues the court had to address were whether the respondent acted beyond its statutory powers in approving the development application and whether the decision was unreasonable, unjust, or procedurally unfair. The applicant argued that the respondent failed to properly consider environmental impacts and breached the statutory framework governing the approval process.

The court examined the statutory provisions and the evidence presented to determine if the respondent had acted beyond its powers and if the decision was unreasonable. The court found that the respondent had considered the necessary environmental factors and followed the statutory framework appropriately. The applicant's claims that the decision was unreasonable, unjust, or procedurally unfair were dismissed, as the court found no errors in the decision-making process. The court concluded that the respondent's decision was valid and within its statutory powers.

Orders

Orders of the court

See orders at [45]

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	Michael Ryan v Joint Regional Planning Panel [2019] NSWLEC 21
Hearing dates:	1 and 5 March 2019
Date of orders:	06 March 2019
Decision date:	06 March 2019
Jurisdiction:	Class 4
Before:	Robson J
Decision:	See orders at [45]
Catchwords:	INTERLOCUTORY INJUNCTION – whether activity relying upon an allegedly invalid consent should be restrained – whether there is a serious question to be tried – whether the balance of convenience favours granting the injunction – injunction refused
Legislation Cited:	Heritage Act 1977 (NSW) ss 136, 139 National Parks and Wildlife Act 1974 (NSW) s 90 State Environmental Planning Policy No 44—Koala Habitat Protection
Cases Cited:	Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd (2001) 208 CLR 199; [2001] HCA 63 Australian Broadcasting Corporation v O’Neill (2006) 227 CLR 57; [2006] HCA 46 Beecham Group Limited v Bristol Laboratories Pty Limited (1968) 118 CLR 618 Beese v Woodhouse [1970] 1 WLR 586 Iseek Communications Pty Ltd v Jones [2017] NSWSC 251 Kolback Securities Ltd v Epoch Mining NL (1987) 8 NSWLR 533 Mekhail v Hana; Mekhail v Hana; In the Estate of Nadia Mekhail (No 2) [2017] NSWSC 1175 Patrick Stevedores Operations No 2 Pty Ltd v Maritime Union of Australia (No 3) (1998) 195 CLR 1; [1998] HCA 30 Positive Change for Marine Life Inc v Byron Shire Council (No 2) [2015] NSWLEC 157 SAI Global Property Division Pty Ltd (ACN 089 586 872) v Jones & Ors [2018] NSWSC 438 Samsung Electronics Co Ltd v Apple Inc (2011) 217 FCR 238; [2011] FCAFC 156 Shoalhaven City Council v Bridgewater Investments Pty Ltd [2010] NSWLEC 103 Tegra (NSW) Pty Ltd v Gundagai Shire Council [2007] NSWLEC 806; (2007) 160 LGERA 1 UP Australia Pty Ltd v McDonald & Anor [2018] NSWSC 218
Texts Cited:	Meagher, Gummow & Lehane’s Equity: Doctrines and Remedies (5th ed 2014, LexisNexis Butterworths)
Category:	Procedural and other rulings
Parties:	Michael Ryan (Applicant) Joint Regional Planning Panel (First Respondent) Lismore City Council (Second Respondent) Winten (No 12) Pty Ltd (Third Respondent) W A Sexton (Fourth Respondent) Glorbill Pty Ltd (Fifth Respondent)
Representation:	Counsel: L Saw (Applicant) P Clay SC (Third Respondent) Solicitors: A Oshlack, agent (Applicant) Department of Planning and Environment (First Respondent) Lismore City Council (Second Respondent) Dentons (Third, Fourth and Fifth Respondents)
File Number(s):	2019/00006908
Publication restriction:	Nil