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Pongrass Group Operations Pty Ltd v Minister for Planning

Pongrass Group Operations Pty Ltd v Minister for Planning

Case [2007] NSWLEC 638 4 October 2007

Judicial Review

Public Exhibition

Administrative Process

Statutory Interpretation

Administrative Law

Planning & Development Law

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Land and Environment Court

of New South Wales

CITATION: Pongrass Group Operations Pty Limited v Minister for Planning & Anor [2007] NSWLEC 638

PARTIES:
APPLICANT
Pongrass Group Operations Pty Limited
FIRST RESPONDENT
Minister for Planning
SECOND RESPONDENT
Marrickville Council

FILE NUMBER(S): 40450 of 2007

CORAM: Jagot J

KEY ISSUES: Judicial Review :- amendment to local environmental plan - whether Minister functus officio - whether amendment made in breach of public exhibition requirements - failure to exhibit Ministerial direction - whether Ministerial direction applied - application dismissed

LEGISLATION CITED: Environmental Planning and Assessment Act 1979
Marrickville Local Environmental Plan 2001

CASES CITED: Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321;
Currey v Sutherland Shire Council (2003) 129 LGERA 223;
Drummoyne Municipal Council v Lebnan (1974) 131 CLR 350;
Ex parte Renouf (1924) 24 SR (NSW) 463;
Falkiner v Director-General of Planning NSW (2002) 125 LGERA 138;
Goulding v Chief Executive, Ministry of Fisheries [2004] 3 NZLR 173;
Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597;
Minister for Immigration and Ethnic Affairs v Kurtovic (1990) 21 FCR 193;
Ricegrowers Co-operative Mills Ltd v Bannerman [1981] 56 FLR 443;
Richmond v Urban Affairs and Planning [2000] NSWLEC 23;
Semunigus v Minister for Immigration & Multicultural Affairs [1999] FCA 422;
Semunigus v Minister for Immigration and Multicultural Affairs (2000) 96 FCR 533;
Shanahan v Strathfield Municipal Council [1973] 2 NSWLR 740;
Singh v Minister for Immigration and Multicultural Affairs (2001) 109 FCR 18;
Sloane v Minister for Immigration, Local Government and Ethnic Affairs (1992) 37 FCR 429;
Smith v Wyong Shire Council (2003) 132 LGERA 148;
Townsend v Evans Shire Council (2000) 109 LGERA 336;
Vanmeld Pty Ltd v Fairfield City Council (1999) 46 NSWLR 78

DATES OF HEARING: 25/9/2007

DATE OF JUDGMENT:
4 October 2007

LEGAL REPRESENTATIVES:
APPLICANT
Mr Mark Speakman SC with Dr S Berveling
SOLICITORS
C G Gillis & Co
FIRST RESPONDENT
Mr N Williams SC with Ms A Mitchelmore
SOLICITORS
Department of Planning
SECOND RESPONDENT
Mr Michael S Henry
SOLICITORS
Marrickville Council

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Jagot J

4 October 2007

40450 of 2007

PONGRASS GROUP OPERATIONS PTY LIMITED
Applicant

MINISTER FOR PLANNING
First Respondent

MARRICKVILLE COUNCIL
Second Respondent
JUDGMENT

Jagot J:
A. Introduction

1 By Class 4 application filed on 15 May 2007 Pongrass Group Operations Pty Limited (Pongrass) sought a declaration that Amendment No 30 to the Marrickville Local Environmental Plan 2001 (the LEP) was invalid. Amendment No 30 to the LEP was published in the Gazette on 23 February 2007. It amended the definition of bulky goods salesroom or showroom in the LEP and permitted with consent development for that and other nominated purposes on land at 500 Princes Highway, St Peters.

2 Pongrass claimed that Amendment No 30 was invalid on two grounds as follows:

(1) The Minister decided not to proceed with draft Amendment No 30 on or about…

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.

Continue reading Pongrass Group Operations Pty Ltd v Minister for Planning

Details

AGLC: Pongrass Group Operations Pty Ltd v Minister for Planning [2007] NSWLEC 638
Case: [2007] NSWLEC 638
Decision Date: 4 October 2007

CaseChat Overview and Summary

In the Land and Environment Court of New South Wales, Pongrass Group Operations Pty Limited sought a declaration that Amendment No 30 to the Marrickville Local Environmental Plan 2001 was invalid, on the basis that the Minister for Planning had functus officio by deciding not to proceed with the amendment on 30 July 2006, and that the amendment was made in breach of public exhibition requirements in s 66 of the Environmental Planning and Assessment Act 1979. The Minister for Planning and Marrickville Council opposed the application. The primary issue before the Court was whether the Minister had functus officio by deciding not to proceed with the amendment on 30 July 2006, and whether the amendment was made in breach of the public exhibition requirements in s 66 of the EPA Act. The Court held that the Minister was not functus officio by deciding not to proceed with the amendment on 30 July 2006, and that the amendment was not made in breach of s 66 of the EPA Act. The Court dismissed the Class 4 application and the parties may address on costs.

Orders