Moorebank Recyclers Pty Ltd v Tanlane Pty Ltd

The appeal concerned a dispute between Moorebank Recyclers Pty Ltd and Tanlane Pty Ltd regarding a planning proposal for land at 146 Newbridge Road, Moorebank. The primary legal question before the Court of Appeal of New South Wales was whether obligations under clause 6 of State Environmental Planning Policy No 55 (SEPP 55) were engaged and, if so, whether they were complied with during the preparation and determination of the planning proposal.

The court was required to determine whether the "preparation" of an environmental planning instrument, as contemplated by SEPP 55, included the preparation of a planning proposal. Further, it needed to ascertain whether a proposed amendment to a local environmental plan, which involved including land in a particular zone, triggered the obligations under SEPP 55. The court also had to consider whether compliance with SEPP 55, clause 6, was a mandatory pre-condition for the valid exercise of power by the local council in accepting the planning proposal and by the delegate of the Greater Sydney Commission in making a gateway determination.

The Court of Appeal found that the obligations under SEPP 55, clause 6, were indeed engaged when a planning proposal was being prepared and considered. The court reasoned that the term "preparing" an environmental planning instrument encompassed the preparation of a planning proposal, and that the proposed amendment involved "including land" in a "particular zone" as contemplated by the policy. Crucially, the court held that compliance with SEPP 55, clause 6, was a mandatory pre-condition to the valid exercise of the powers to accept a planning proposal and to make a gateway determination.

Consequently, the appeal was allowed, and the judgment and orders of the Land and Environment Court were set aside. The court declared that the planning proposal accepted by Liverpool City Council and the subsequent determination by the Greater Sydney Commission were invalid. Tanlane Pty Ltd was ordered to pay the costs of Moorebank Recyclers Pty Ltd.