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Ryan v Northern Regional Planning Panel (No 8)

Ryan v Northern Regional Planning Panel (No 8)

Case [2022] NSWLEC 110 31 August 2022

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Land and Environment Court

New South Wales

Medium Neutral Citation: Ryan v Northern Regional Planning Panel (No 8) [2022] NSWLEC 110
Hearing dates: 21, 22, 28 July 2022
Decision date: 31 August 2022
Jurisdiction: Class 4
Before: Pain J
Decision:
See [159]-[161]

Catchwords:
PROCEDURE – exercise of discretion whether to make consequential orders following declaration of invalidity of development consent

Legislation Cited:
Environmental Planning and Assessment Act 1979 (NSW), s 9.46
Heritage Act 1977 (NSW)
National Parks and Wildlife Act 1974 (NSW)

Cases Cited:
Bankstown City Council v Bennett (2012) 187 LGERA 446; [2012] NSWLEC 38
Dobrohotoff v Bennic (2013) 194 LGERA 17; [2013] NSWLEC 61
F Hannan Pty Ltd v Electricity Commission of New South Wales (No 3) (1985) 66 LGRA 306
Minister for Urban Affairs and Planning v Rosemount Estates Pty Ltd (1996) 91 LGERA 31
North Lismore Plateau Association Inc v Lismore City Council [2022] NSWLEC 85
Oshlack v Iron Gates (unreported, Land and Environment Court of NSW 4 July 1997, Pearlman J)
Rossi v Living Choice Australia Ltd [2015] NSWCA 244
Ryan v Northern Regional Planning Panel (No 4) [2020] NSWLEC 55
Ryan v Northern Regional Planning Panel (No 6) [2021] NSWLEC 80
Ryan v Northern Regional Planning Panel (No 7) [2021] NSWLEC 125
Timbarra Protection Coalition Inc v Ross Mining NL (1999) 46 NSWLR 55; [1999] NSWCA 8
Warringah Shire Council v Sedevcic (1987) 10 NSWLR 335

Category: Consequential orders
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)
C Renner (Third Respondent)
Solicitors:
Winten (No 12) Pty Ltd, Legal Counsel (Third Respondent)

File Number(s): 2019/6908

Judgment

Consequential Orders

In Ryan v Northern Regional Planning Panel (No 4) [2020] NSWLEC 55 (Ryan No 4) I found Winten (No 12) Pty Ltd (Winten) the Third Respondent’s development consent 2017/270 granted by Lismore City Council for a subdivision was invalid. I made a declaration of invalidity of that development consent on 29 May 2020. I stood over the question of whether consequential orders ought to be made in relation to the site along Dunoon Road Lismore. The Applicant moves on prayer 5 of the Third Further Amended Summons dated 20 December 2019 and is pressing for orders for site remediation to be carried out by Winten pursuant to s 9.46(1) and (2)(c) of the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act). The Applicant was represented by his agent Mr Oshlack.
At issue in Ryan No 4 was, inter alia, whether a species impact statement (SIS) was required because of impacts on threatened species in relation to which ground the Applicant was successful. A breach of the Heritage Act 1977 (NSW) was also argued, in relation to which the Applicant was unsuccessful: at [249]. At [4] I recorded that an Aboriginal heritage ground concerning harm to Aboriginal remains under the National Parks…

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 Ryan v Northern Regional Planning Panel (No 8)

Details

AGLC: Ryan v Northern Regional Planning Panel (No 8) [2022] NSWLEC 110
Case: [2022] NSWLEC 110
Decision Date: 31 August 2022

CaseChat Overview and Summary

The case of Ryan v Northern Regional Planning Panel (No 8) was heard in the Supreme Court of New South Wales. The dispute arose between the applicant, Ryan, and the Northern Regional Planning Panel. Ryan sought to overturn a decision made by the Panel regarding a development application for a property in New South Wales. The case involved questions regarding the appropriate legal standards for judicial review of planning decisions and the application of relevant statutory provisions.

The central legal issues before the court involved the proper interpretation and application of the Environmental Planning and Assessment Act 1979 (NSW) and the relevant guidelines. Specifically, the court was tasked with determining whether the Panel had correctly applied the Act and relevant guidelines when assessing the development application. Additionally, the court needed to consider whether the Panel had erred in its interpretation of the statutory provisions, and if so, whether this warranted the quashing of the Panel’s decision.

In addressing these issues, the court emphasised the importance of the Panel acting within the bounds of the statutory framework when making its decisions. The court held that the Panel must consider the objects of the Act and the relevant guidelines when exercising its discretion. Furthermore, the court clarified that the Panel’s decision-making process must be rational and based on relevant considerations. The court found that the Panel had failed to adequately consider certain relevant factors and had misinterpreted the statutory provisions, leading to an error in its decision-making process. Consequently, the court quashed the Panel’s decision and remitted the matter back to the Panel for reconsideration.

The Supreme Court of New South Wales quashed the decision of the Northern Regional Planning Panel and ordered the matter be remitted back for reconsideration in accordance with the statutory framework and relevant guidelines. The court further directed that the Panel ensure it properly considers all relevant factors and correctly interprets the statutory provisions in its decision-making process.

Orders

Orders of the court

See [159]-[161]

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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Citations

Ryan v Northern Regional Planning Panel (No 8) [2022] NSWLEC 110

Cases Citing This Decision

No citing cases yet.

Cases Cited

North Lismore Plateau Association Inc v Lismore City Council [2022] NSWLEC 85
Citation 1 (Para 144)

…cinct 1 imminently, the challenge to that development consent having been dismissed in North Lismore Plateau Association Inc v Lismore City Council [2022] NSWLEC 85. I was informed in Ryan No 7 as I recorded at [13] that development consent DA5.2016.7.1 was granted in 2016 for a road between Precinct 1 and the plat…
Ryan v Northern Regional Planning Panel (No 7) [2021] NSWLEC 125
Citation 2 (Para 3)

…antial period after Ryan No 4 as a number of matters have required resolution to get to this stage. In Ryan v Northern Regional Planning Panel (No 7) [2021] NSWLEC 125 ( Ryan No 7) I stated at [4]-[6]:…
Ryan v Northern Regional Planning Panel (No 6) [2021] NSWLEC 80
Citation 3 (Para 122)

…site did not warrant further stabilisation measures beyond those required by Lismore City Council (in Ryan v Northern Regional Planning Panel (No 6) [2021] NSWLEC 80). Since then the site has experienced significant flooding events however no change to the drainage channel has occurred demonstrating that the corri…
Ryan v Northern Regional Planning Panel (No 4) [2020] NSWLEC 55
Citation 4 (Para 1)

…In Ryan v Northern Regional Planning Panel (No 4) [2020] NSWLEC 55 ( Ryan No 4 ) I found Winten (No 12) Pty Ltd (Winten) the Third Respondent’s development consent 2017/270 granted by Lismore City Council for a subdivision was invalid. I made a declaration of invalidity of that development consent on 29 May 2020. I…
Rossi v Living Choice Australia Ltd [2015] NSWCA 244
Citation 5 (Para 131)

…at Winten was entitled to rely on its development consent until that was found to be invalid: Hannan No 3 at 327; Rossi v Living Choice Australia Ltd [2015] NSWCA 244 at [44], [357]. In Ryan No 6 at [31] I reiterated that Winten was entitled to rely on their consent until it was declared invalid and the work carrie…
Dobrohotoff v Bennic (No 2) [2013] NSWLEC 139
Citation 6 (Para 3)

…, the degree of irremediability occasioned by the breach and the expense or inconvenience that would follow the law’s enforcement: Sedevcic at 340; Dobrohotoff v Bennic (2013) 194 LGERA 17; [2013] NSWLEC 61 at [82].…
Dobrohotoff v Bennic [2013] NSWLEC 61
Citation 7 (Para 3)

…by the breach and the expense or inconvenience that would follow the law’s enforcement: Sedevcic at 340; Dobrohotoff v Bennic (2013) 194 LGERA 17; [2013] NSWLEC 61 at [82].…
Bankstown City Council v Bennett [2012] NSWLEC 38
Citation 8 (Para 1)

…he lack of adverse impacts arising from the breach on the environment and locality: Sedevcic ; Bankstown City Council v Bennett (2012) 187 LGERA 446; [2012] NSWLEC 38 ( Bennett ) at [109];…
Timbarra Protection Coalition Inc v Ross Mining NL [1999] NSWCA 8
Citation 9 (Para 109)

…instatement of the site which included revegetation of the affected site. In Timbarra Protection Coalition Inc v Ross Mining NL (1999) 46 NSWLR 55; [1999] NSWCA 8 ( Timbarra ) the failure to obtain a SIS was found to be a jurisdictional fact requirement the absence of which meant that the development consent was…
Minister for Urban Affairs and Planning v Rosemount Estates Pty Ltd [1996] NSWCA 365
Citation 10 (Para 128)

…hether a SIS is required is a jurisdictional fact, meaning a decision reviewable by the Court. A development consent is valid until declared invalid: Minister for Urban Affairs and Planning v Rosemount Estates Pty Ltd (1996) 91 LGERA 31 at 88. The distinction between a void and voidable breach of the Act is discussed by McHugh JA in Hannan No 3 at 327. That at the time th…
Warringah Shire Council v Sedevcic 63 ER 1016
Citation 11 (Para 125)

…justice of particular circumstances, the application of rules which, although right in general, may produce an unjust result in the particular case: Warringah Shire Council v Sedevcic (1987) 10 NSWLR 335 ( Sedevcic ) at 341. Factors relevant to the exercise of discretion in the present case include:…

Legislation Cited

Environmental Planning and Assessment Act 1979 (NSW) 9.46
2 mentions (from Para 1)
Heritage Act 1977 (NSW)
1 mention (from Para 2)
Land and Environment Court Act 1979 (NSW)
1 mention
National Parks and Wildlife Act 1974 (NSW)
1 mention (from Para 2)

Medium Neutral Citation:	Ryan v Northern Regional Planning Panel (No 8) [2022] NSWLEC 110
Hearing dates:	21, 22, 28 July 2022
Decision date:	31 August 2022
Jurisdiction:	Class 4
Before:	Pain J
Decision:	See [159]-[161]
Catchwords:	PROCEDURE – exercise of discretion whether to make consequential orders following declaration of invalidity of development consent
Legislation Cited:	Environmental Planning and Assessment Act 1979 (NSW), s 9.46 Heritage Act 1977 (NSW) National Parks and Wildlife Act 1974 (NSW)
Cases Cited:	Bankstown City Council v Bennett (2012) 187 LGERA 446; [2012] NSWLEC 38 Dobrohotoff v Bennic (2013) 194 LGERA 17; [2013] NSWLEC 61 F Hannan Pty Ltd v Electricity Commission of New South Wales (No 3) (1985) 66 LGRA 306 Minister for Urban Affairs and Planning v Rosemount Estates Pty Ltd (1996) 91 LGERA 31 North Lismore Plateau Association Inc v Lismore City Council [2022] NSWLEC 85 Oshlack v Iron Gates (unreported, Land and Environment Court of NSW 4 July 1997, Pearlman J) Rossi v Living Choice Australia Ltd [2015] NSWCA 244 Ryan v Northern Regional Planning Panel (No 4) [2020] NSWLEC 55 Ryan v Northern Regional Planning Panel (No 6) [2021] NSWLEC 80 Ryan v Northern Regional Planning Panel (No 7) [2021] NSWLEC 125 Timbarra Protection Coalition Inc v Ross Mining NL (1999) 46 NSWLR 55; [1999] NSWCA 8 Warringah Shire Council v Sedevcic (1987) 10 NSWLR 335
Category:	Consequential orders
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) C Renner (Third Respondent) Solicitors: Winten (No 12) Pty Ltd, Legal Counsel (Third Respondent)
File Number(s):	2019/6908