Project 28 Pty Ltd v Minister for Planning - [2016] NSWLEC 1363

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 2005
Cases 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 42
Category: Procedural and other rulings
Parties: Project 28 Pty Ltd (Applicant)
Minister for Planning (Respondent)
Representation:
Counsel:
Mr A Gadiel (Solicitor) (Applicant)
Ms J McKelvey (Barrister) (Respondent)
Solicitors:
Mills Oakley (Applicant)
NSW Department of Planning and Environment (Respondent)

File Number(s): 2016/178476

Judgment

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.
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…

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: [2016] NSWLEC 1363
Decision Date: 29 August 2016

CaseChat Overview and Summary

Project 28 Pty Ltd brought proceedings against the Minister for Planning, challenging the validity of a decision to refuse consent for a development application. The matter was heard in the Supreme Court of New South Wales. The primary dispute centred on the Minister’s refusal to approve the applicant’s development proposal, which the applicant contended was unjust and contrary to statutory obligations. Project 28 argued that the Minister failed to consider relevant planning principles and made errors in the assessment of the application.

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

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:	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 2005
Cases 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 42
Category:	Procedural and other rulings
Parties:	Project 28 Pty Ltd (Applicant) Minister for Planning (Respondent)
Representation:	Counsel: Mr A Gadiel (Solicitor) (Applicant) Ms J McKelvey (Barrister) (Respondent) Solicitors: Mills Oakley (Applicant) NSW Department of Planning and Environment (Respondent)
File Number(s):	2016/178476