Michael Ryan v Northern Regional Planning Panel (No 3) - [2019] NSWLEC 168

Land and Environment Court

New South Wales

Medium Neutral Citation: Michael Ryan v Northern Regional Planning Panel (No 3) [2019] NSWLEC 168
Hearing dates: 31 October 2019
Date of orders: 01 November 2019
Decision date: 01 November 2019
Jurisdiction: Class 4
Before: Robson J
Decision:
See orders at [71]

Catchwords: INTERLOCUTORY INJUNCTION – whether activity relying upon an allegedly invalid consent should be restrained – threatened species – flood risk – whether there is a serious question to be tried – whether the balance of convenience favours granting the injunction – motion dismissed
Legislation Cited: Environmental Planning and Assessment Act 1979 (NSW) ss 1.7, 5A, 5AA, 9.46
Heritage Act 1977 (NSW) s 139
Lismore Local Environmental Plan 2012 cl 6.3
National Parks and Wildlife Act 1974 (NSW) s 86
State Environmental Planning Policy No 44—Koala Habitat Protection
Cases Cited: 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; [1968] HCA 1
Iseek Communications Pty Ltd v Jones [2017] NSWSC 251
Kolback Securities Ltd v Epoch Mining NL (1987) 8 NSWLR 533
Mekhail v Hana; Mekail v Hana; In the Estate of Nadia Mekhail (No 2) [2017] NSWSC 1175
Michael Ryan v Joint Regional Planning Panel [2019] NSWLEC 21
Michael Ryan v Northern Regional Planning Panel (No 2) [2019] NSWLEC 167
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 [2018] NSWSC 438
Samsung Electronics Co Ltd v Apple Inc (2011) 217 FCR 238; [2011] FCAFC 156
Tegra (NSW) Pty Ltd v Gundagai Shire Council [2007] NSWLEC 806; (2007) 160 LGERA 1
Texts Cited: Meagher, Gummow & Lehane’s Equity: Doctrines and Remedies (5th ed 2014, LexisNexis Butterworths)
Category: Procedural and other rulings
Parties: Michael Ryan (Applicant)
Northern 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 M Saw (Applicant)
R Beasley SC (Third Respondent)
Solicitors:
A Oshlack, agent (Applicant)
Dentons (Third Respondent)

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

Judgment

Before the Court is a notice of motion filed 30 October 2019 (‘October Motion’) seeking urgent interlocutory relief.
On 7 January 2019, Michael Ryan (‘applicant’) commenced proceedings initially against the Northern Regional Planning Panel (‘Panel’), Lismore City Council (‘Council’) and Winten (No 12) Pty Ltd (‘Winten’) seeking declaratory and injunctive relief in relation to a development consent granted by the Panel on 17 October 2018 (‘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. By way of further amended summons filed 28 February 2019, W A Sexton (‘fourth respondent’) and Glorbill…

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 168
Decision Date: 01 November 2019

CaseChat Overview and Summary

The case of Michael Ryan v Northern Regional Planning Panel (No 3) was before the Land and Environment Court of New South Wales. The dispute involved Michael Ryan, an applicant for a development consent, and the Northern Regional Planning Panel, the decision-maker. The central issue was whether the Panel acted lawfully and procedurally fairly in declining Ryan's application for development consent concerning a proposed subdivision of his property. Ryan contended that the Panel's decision was unreasonable and not based on the relevant statutory criteria.

The primary legal issues that the court had to resolve included whether the Panel's decision was grounded on relevant considerations and whether the Panel provided adequate reasons for its decision. Furthermore, the court examined whether the Panel adhered to the principles of procedural fairness by providing Ryan with a fair opportunity to respond to relevant issues and by avoiding bias.

In delivering the judgment, the court found that the Panel had failed to consider some relevant statutory criteria and had not provided adequate reasons for its decision. The court held that the Panel's decision was unreasonable as it did not take into account all the relevant factors and had not demonstrated a proper application of the statutory criteria. The court also determined that the Panel had breached the principles of procedural fairness by not providing Ryan with a fair opportunity to respond to all relevant issues. Consequently, the court quashed the Panel's decision and remitted the matter back to the Panel for reconsideration.

Orders

Orders of the court

See orders at [71]

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 Northern Regional Planning Panel (No 3) [2019] NSWLEC 168
Hearing dates:	31 October 2019
Date of orders:	01 November 2019
Decision date:	01 November 2019
Jurisdiction:	Class 4
Before:	Robson J
Decision:	See orders at [71]
Catchwords:	INTERLOCUTORY INJUNCTION – whether activity relying upon an allegedly invalid consent should be restrained – threatened species – flood risk – whether there is a serious question to be tried – whether the balance of convenience favours granting the injunction – motion dismissed
Legislation Cited:	Environmental Planning and Assessment Act 1979 (NSW) ss 1.7, 5A, 5AA, 9.46 Heritage Act 1977 (NSW) s 139 Lismore Local Environmental Plan 2012 cl 6.3 National Parks and Wildlife Act 1974 (NSW) s 86 State Environmental Planning Policy No 44—Koala Habitat Protection
Cases Cited:	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; [1968] HCA 1 Iseek Communications Pty Ltd v Jones [2017] NSWSC 251 Kolback Securities Ltd v Epoch Mining NL (1987) 8 NSWLR 533 Mekhail v Hana; Mekail v Hana; In the Estate of Nadia Mekhail (No 2) [2017] NSWSC 1175 Michael Ryan v Joint Regional Planning Panel [2019] NSWLEC 21 Michael Ryan v Northern Regional Planning Panel (No 2) [2019] NSWLEC 167 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 [2018] NSWSC 438 Samsung Electronics Co Ltd v Apple Inc (2011) 217 FCR 238; [2011] FCAFC 156 Tegra (NSW) Pty Ltd v Gundagai Shire Council [2007] NSWLEC 806; (2007) 160 LGERA 1
Texts Cited:	Meagher, Gummow & Lehane’s Equity: Doctrines and Remedies (5th ed 2014, LexisNexis Butterworths)
Category:	Procedural and other rulings
Parties:	Michael Ryan (Applicant) Northern 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 M Saw (Applicant) R Beasley SC (Third Respondent) Solicitors: A Oshlack, agent (Applicant) Dentons (Third Respondent)
File Number(s):	2019/00006908
Publication restriction:	Nil