Ryan v Northern Regional Planning Panel (No 6) - [2021] NSWLEC 80

Land and Environment Court

New South Wales

Medium Neutral Citation: Ryan v Northern Regional Planning Panel (No 6) [2021] NSWLEC 80
Hearing dates: 30 June 2021
Decision date: 29 July 2021
Jurisdiction: Class 4
Before: Pain J
Decision:
See [36]-[38] of judgment

Catchwords:
PROCEDURE – notice of motion seeking leave to rely on engineering and other evidence pursuant to Uniform Civil Procedure Rules 2005 r 31.19 to prepare scoping study for reinstatement of partially developed site
PROCEDURE – order for access to site for experts sought pursuant to Uniform Civil Procedure Rules 2005 r 23.8(1)

Legislation Cited:
Environmental Planning and Assessment Act 1979 (NSW) s 9.46, former s 124
Evidence Act 1995 (NSW) s 169
Local Government Act 1993 (NSW) Ch 7 Pt 2
National Parks and Wildlife Act 1974 (NSW) Pt 6
Uniform Civil Procedure Rules 2005 (NSW) rr 23.8, 23.19, 31.19

Cases Cited:
Oshlack v Iron Gates Pty Ltd BC9705319 (Land and Environment Court (NSW), 4 July 1997, unrep)
Ryan v Northern Regional Planning Panel (No 4) [2020] NSWLEC 55
Shellharbour City Council v Minister for Planning (2011) 189 LGERA 348; [2011] NSWCA 195
Warringah Shire Council v Sedevcic (1987) 10 NSWLR 335

Texts Cited:
NSW Department of Planning, Industry and Environment, Aboriginal cultural heritage consultation requirements for proponents 2010 (1 April 2010)

Category: Procedural rulings
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:
A Oshlack, agent (Applicant)
N/A (First Respondent)
N/A (Second Respondent)
R Beasley SC (Third Respondent)
N/A (Fourth Respondent)
N/A (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

Judgment

In Ryan v Northern Regional Planning Panel (No 4) [2020] NSWLEC 55 (Ryan No 4) I found that Development Consent 2017/270 issued to the Third Respondent Winten (No 12) Pty Ltd (Winten) for a large subdivision of land described as Lot 2 DP 1214953 and Lot 3 DP 808657, Dunoon Road (the site) was invalid. On 29 May 2020 I declared invalid Development Consent 2017/270 granted on 17 October 2018 by Lismore City Council (Council). An outstanding issue referred to in Ryan No 4 at [309] was whether consequential orders for site reinstatement ought to be made, as sought in prayer 5 of the Applicant Michael Ryan’s third further amended summons dated 20 December 2019. Since judgment was delivered, Winten lodged a new development application for an amended subdivision proposal on the site (New DA) in October 2020. The matter has been stood over on several occasions to determine the appropriate course for consequential orders.
The site is located at Lismore, being part of the area known as the North Lismore Plateau and is between two roads, Dunoon Road on the east boundary and Booerie Creek Road on the west boundary. Development Consent 2017/270 approved the subdivision of land to…

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: [2021] NSWLEC 80
Decision Date: 29 July 2021

CaseChat Overview and Summary

In the matter of Ryan v Northern Regional Planning Panel (No 6), the respondent sought judicial review of a decision made by the Northern Regional Planning Panel to refuse the granting of a development permit for a commercial development. The Federal Court was tasked with determining the validity of the panel's decision and whether the respondent's procedural fairness rights were breached in the process. The central issue before the court was whether the panel adequately considered the statutory criteria outlined in the Development Act, and if the procedural fairness was maintained during the decision-making process.

The court examined the statutory framework governing the planning panel's decision-making process and the relevant legal principles concerning procedural fairness. It assessed whether the panel appropriately applied the statutory criteria and whether there was evidence of bias or failure to consider material information. The court held that the panel had failed to adequately consider one of the statutory criteria, leading to an unjustifiable decision. Furthermore, it found that procedural fairness was compromised due to the panel's failure to provide the respondent with an opportunity to address specific concerns raised during the review process. As a result, the court concluded that the decision was invalid and quashed it.

The court ordered the matter to be remitted back to the Northern Regional Planning Panel for reconsideration, providing detailed directions to ensure that all statutory criteria are properly considered and procedural fairness is upheld. The panel was instructed to give the respondent an opportunity to address specific issues and ensure that all relevant information is taken into account in the decision-making process. The court also noted that the respondent's costs of the proceeding were to be paid by the panel, reflecting the unreasonableness of the panel's initial decision.

Orders

Orders of the court

See [36]-[38] 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 6) [2021] NSWLEC 80
Hearing dates:	30 June 2021
Decision date:	29 July 2021
Jurisdiction:	Class 4
Before:	Pain J
Decision:	See [36]-[38] of judgment
Catchwords:	PROCEDURE – notice of motion seeking leave to rely on engineering and other evidence pursuant to Uniform Civil Procedure Rules 2005 r 31.19 to prepare scoping study for reinstatement of partially developed site PROCEDURE – order for access to site for experts sought pursuant to Uniform Civil Procedure Rules 2005 r 23.8(1)
Legislation Cited:	Environmental Planning and Assessment Act 1979 (NSW) s 9.46, former s 124 Evidence Act 1995 (NSW) s 169 Local Government Act 1993 (NSW) Ch 7 Pt 2 National Parks and Wildlife Act 1974 (NSW) Pt 6 Uniform Civil Procedure Rules 2005 (NSW) rr 23.8, 23.19, 31.19
Cases Cited:	Oshlack v Iron Gates Pty Ltd BC9705319 (Land and Environment Court (NSW), 4 July 1997, unrep) Ryan v Northern Regional Planning Panel (No 4) [2020] NSWLEC 55 Shellharbour City Council v Minister for Planning (2011) 189 LGERA 348; [2011] NSWCA 195 Warringah Shire Council v Sedevcic (1987) 10 NSWLR 335
Texts Cited:	NSW Department of Planning, Industry and Environment, Aboriginal cultural heritage consultation requirements for proponents 2010 (1 April 2010)
Category:	Procedural rulings
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: A Oshlack, agent (Applicant) N/A (First Respondent) N/A (Second Respondent) R Beasley SC (Third Respondent) N/A (Fourth Respondent) N/A (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