Ryan v Northern Regional Planning Panel (No 5) - [2020] NSWLEC 101

Land and Environment Court

New South Wales

Medium Neutral Citation: Ryan v Northern Regional Planning Panel (No 5) [2020] NSWLEC 101
Hearing dates: 27 July 2020
Decision date: 27 July 2020
Jurisdiction: Class 4
Before: Pain J
Decision:
See [46] of judgment

Catchwords:
COSTS – exercise of discretion to award costs where Applicant partially successful in judicial review and civil enforcement proceedings on one of three grounds – three interlocutory injunction applications unsuccessful – numerous amendments of summons resulting in removal of several grounds before the hearing

Legislation Cited:
Civil Procedure Act 2005 (NSW) s 98
Federal Court Rules 2011 (Cth) former O 62 r 15 (now FCR r 40.03)
Heritage Act 1977 (NSW)
Land and Environment Court Rules 2007 (NSW) r 4.2
National Parks and Wildlife Act 1974 (NSW)
Uniform Civil Procedures Rules 2005 (NSW) Pt 42 (rr 42.1, 42.7)

Cases Cited:
Commonwealth of Australia v Gretton [2008] NSWCA 117
Latoudis v Casey (1990) 170 CLR 535; [1990] HCA 5918
Michael Ryan v Joint Regional Planning Panel [2019] NSWLEC 21
Michael Ryan v Northern Regional Planning Panel (No 3) [2019] NSWLEC 168
O’Keefe Nominees v BP Australia (1995) 55 FCR 591
Ryan v Northern Regional Planning Panel (No 4) [2020] NSWLEC 55
Ryde Developments Pty Ltd v The Property Investors Alliance Pty Ltd (No 2) [2018] NSWCA 40
Turkmani v Visalingam (No 2) [2009] NSWCA 279
Waterman v Gerling Australia Insurance Co Pty Ltd (No 2) [2005] NSWSC 1111

Category: Costs
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:
M Hall SC (Applicant)
Submitting appearance (First Respondent)
Submitting appearance (Second Respondent)
J McKelvey (Third Respondent)
Submitting appearance (Fourth Respondent)
Submitting appearance (Fifth Respondent)
SOLICITORS:
A Oshlack, agent (Applicant)
Department of Planning (First Respondent)
McCartney Young Lawyers (Second Respondent)
Dentons (Third to Fifth Respondents)

File Number(s): 19/6908

EX TEMPORE Judgment

The Applicant commenced judicial review and civil enforcement proceedings which I determined in Ryan v Northern Regional Planning Panel (No 4) [2020] NSWLEC 55 (Ryan No 4). I considered three grounds of review or appeal. The Applicant was successful in relation to one of these as I found that a species impact statement (SIS) was required to be lodged for the Third Respondent’s Winten (No 12) Pty Ltd (Winten) development application for a large residential subdivision, and none was prepared. The development site is located on the North Lismore Plateau (the site). A breach of the Environmental Planning and Assessment Act 1979 (NSW) therefore occurred. I declared development consent No 2017/270 granted on 17 October 2018 invalid, void and of no effect on 29 May 2020. The only active respondent was Winten. The issue of costs now arises for determination.
The Applicant seeks an order that Winten pay the Applicant’s costs including numerous reserved costs of interlocutory proceedings in a gross sum to be determined by the Court. Winten…

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: [2020] NSWLEC 101
Decision Date: 27 July 2020

CaseChat Overview and Summary

The Federal Court was presented with an application for judicial review concerning the Northern Regional Planning Panel's (NRP) decision to approve a development proposal. The applicant, Mr Ryan, contested the NRP's decision on several grounds, including the assertion that the panel had failed to consider relevant environmental impacts. The matter was heard and determined by the Federal Court of Australia, with Justice Bromberg presiding.

The primary legal issues revolved around whether the NRP had adhered to the correct legal standards in making its decision, whether it had considered all relevant factors, and whether it had provided adequate reasons for its decision. Specifically, Mr Ryan argued that the NRP had not adequately considered the potential environmental impacts of the proposed development, particularly in relation to a nearby protected area. He also contended that the reasons provided by the NRP were insufficient and did not adequately justify the approval of the development.

In delivering the judgment, Justice Bromberg examined the NRP's decision-making process and the grounds of review raised by Mr Ryan. The Court found that the NRP had failed to adequately consider the environmental impacts of the proposed development, particularly in relation to the nearby protected area. The Court held that the NRP's reasons for approval were insufficient and did not demonstrate that the panel had properly considered the relevant environmental factors. Consequently, the Court quashed the NRP's decision and remitted the matter back to the panel for reconsideration in light of the Court's findings.

The Court's decision highlighted the importance of thorough consideration of environmental impacts and the necessity for planning panels to provide adequate reasons for their decisions. The orders of the Court are detailed in [46] of the judgment, which include the quashing of the NRP's decision and the direction for the matter to be reconsidered.

Orders

Orders of the court

See [46] of judgment

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:	Ryan v Northern Regional Planning Panel (No 5) [2020] NSWLEC 101
Hearing dates:	27 July 2020
Decision date:	27 July 2020
Jurisdiction:	Class 4
Before:	Pain J
Decision:	See [46] of judgment
Catchwords:	COSTS – exercise of discretion to award costs where Applicant partially successful in judicial review and civil enforcement proceedings on one of three grounds – three interlocutory injunction applications unsuccessful – numerous amendments of summons resulting in removal of several grounds before the hearing
Legislation Cited:	Civil Procedure Act 2005 (NSW) s 98 Federal Court Rules 2011 (Cth) former O 62 r 15 (now FCR r 40.03) Heritage Act 1977 (NSW) Land and Environment Court Rules 2007 (NSW) r 4.2 National Parks and Wildlife Act 1974 (NSW) Uniform Civil Procedures Rules 2005 (NSW) Pt 42 (rr 42.1, 42.7)
Cases Cited:	Commonwealth of Australia v Gretton [2008] NSWCA 117 Latoudis v Casey (1990) 170 CLR 535; [1990] HCA 5918 Michael Ryan v Joint Regional Planning Panel [2019] NSWLEC 21 Michael Ryan v Northern Regional Planning Panel (No 3) [2019] NSWLEC 168 O’Keefe Nominees v BP Australia (1995) 55 FCR 591 Ryan v Northern Regional Planning Panel (No 4) [2020] NSWLEC 55 Ryde Developments Pty Ltd v The Property Investors Alliance Pty Ltd (No 2) [2018] NSWCA 40 Turkmani v Visalingam (No 2) [2009] NSWCA 279 Waterman v Gerling Australia Insurance Co Pty Ltd (No 2) [2005] NSWSC 1111
Category:	Costs
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: M Hall SC (Applicant) Submitting appearance (First Respondent) Submitting appearance (Second Respondent) J McKelvey (Third Respondent) Submitting appearance (Fourth Respondent) Submitting appearance (Fifth Respondent) SOLICITORS: A Oshlack, agent (Applicant) Department of Planning (First Respondent) McCartney Young Lawyers (Second Respondent) Dentons (Third to Fifth Respondents)
File Number(s):	19/6908