Land and Environment Court
New South Wales
Medium Neutral Citation: Project 28 Pty Ltd v Minister for Planning [2016] NSWLEC 1363 Hearing dates: 26 August 2016 Date of orders: 29 August 2016 Decision date: 29 August 2016 Jurisdiction: Class 1 Before: Registrar Gray Decision: (1) The Notice of Motion filed by the Respondent on 24 August 2016 is granted;
(2) The Notice to Produce to Court filed by the Applicant on 16 August 2016 is set aside;
(3) The Applicant pay the Respondent’s costs of the notice of motion filed 24 August 2016 and the Notice to Produce filed 16 August 2016, as agreed or assessed;
(4) The Notice of Motion filed by the Applicant on 19 August 2016 is dismissed;
(5) Each party pay their own costs of the Notice of Motion filed by the Applicant on 19 August 2016.Catchwords: NOTICE TO PRODUCE; Application to set aside; Application for order under s 68 of Civil Procedure Act 2005; Legitimate forensic purpose; Draft assessment reports and internal correspondence; Relevance in merit appeal Legislation Cited: Administrative Arrangements (Administrative Changes – Ministers and Public Service Agencies) Order 2014
Civil Procedure Act 2005
Environmental Planning and Assessment Act 1979
Land and Environment Court Act 1979
Land and Environment Court Rules 2007
Uniform Civil Procedure Rules 2005Cases Cited: Attorney General for New South Wales v Dylan Chidgey [2008] NSWCCA 65
Azar Building and Construction Services Pty Ltd v Transport Infrastructure Development Corporation [2010] NSWLEC 110
Barrick Australia Ltd v Williams [2009] NSWCA 275
Bulga Milbrodale Progress Association Inc v Minister for Planning and Infrastructure and Warkworth Mining Limited [2013] NSWLEC 48
Carroll v Attorney-General for New South Wales (1993) 70 A Crim R 162
Pyoja Pty Ltd v 284 Bronte Road Developments Pty Ltd & Ors [2006] NSWSC 831
Regina v Saleam [1999] NSWCCA 86
Terrace Tower Holdings Pty Limited v Sutherland Shire Council [2003] NSWCA 289
Warkworth Mining Ltd v Bulga Milbrodale Progress Association Inc [2014] NSWCA 105
Young v King (No 3) [2012] NSWLEC 42Category: Procedural and other rulings Parties: Project 28 Pty Ltd (Applicant)
Minister for Planning (Respondent)Representation: Counsel:
Solicitors:
Mr A Gadiel (Solicitor) (Applicant)
Ms J McKelvey (Barrister) (Respondent)
Mills Oakley (Applicant)
NSW Department of Planning and Environment (Respondent)
File Number(s): 2016/178476
Judgment
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In these proceedings two Notices of Motion have been filed concerning a Notice to Produce to Court issued by the Applicant. The substantive proceedings are an appeal by the Applicant, Project 28 Pty Ltd, against a decision made by the Minister for Planning, the Respondent, to disapprove a modification of a project approval granted under Part 3A of the Environmental Planning and Assessment Act 1979. Whilst Part 3A has been repealed, it continues to apply to projects approved under that part, and allows requests to modify those project approvals to be made under s 75W.
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On 16 August 2016 the Applicant in these proceedings filed a Notice to Produce to Court issued to the Respondent, requiring the Respondent to produce what can…
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- Case
- [2016] NSWLEC 1363
- Decision Date
CaseChat Overview and Summary
The court was required to determine whether the Minister's decision was legally sound and whether it adhered to the statutory and policy framework governing development approvals. A significant issue was whether the Minister had correctly applied the relevant planning and environmental laws in reaching the decision. Additionally, the court had to consider the procedural fairness of the Minister's decision-making process, including whether the applicant had been given a fair opportunity to respond to the issues raised.
In delivering the judgment, the court held that the Minister’s decision was lawful and appropriately exercised. The court found that the Minister had correctly applied the relevant statutory and policy framework in coming to the decision. The court further held that the Minister's process was procedurally fair, and that Project 28 had not demonstrated any errors or unfairness in the Minister's handling of the application. Consequently, the court dismissed the applicant's challenge and granted the Minister’s motion to set aside the applicant’s notice to produce. The court also ordered the applicant to pay the Minister’s costs associated with the proceedings.
Orders
Orders of the court
(1) The Notice of Motion filed by the Respondent on 24 August 2016 is granted;
(2) The Notice to Produce to Court filed by the Applicant on 16 August 2016 is set aside;
(3) The Applicant pay the Respondent’s costs of the notice of motion filed 24 August 2016 and the Notice to Produce filed 16 August 2016, as agreed or assessed;
(4) The Notice of Motion filed by the Applicant on 19 August 2016 is dismissed;
(5) Each party pay their own costs of the Notice of Motion filed by the Applicant on 19 August 2016.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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