Secretary, Department of Planning, Industry and Environment v Auen Grain Pty Ltd; Merrywinebone Pty Ltd; Greentree; Harris (No 2)

The parties in this case are the Secretary of the Department of Planning, Industry and Environment (appellant) and Auen Grain Pty Ltd, Merrywinebone Pty Ltd, Greentree, and Harris (respondents). The dispute concerns an appeal against an order made by the Land and Environment Court of New South Wales, which rejected an application to cancel a consent under the Environmental Planning and Assessment Act 1979 (EP&A Act). The appeal was heard in the Supreme Court of New South Wales, Court of Appeal, presided over by Bathurst CJ, Leeming JA, and Hamill JA. The court was required to determine whether the Land and Environment Court erred in dismissing the appeal from an earlier decision of the consent authority, the Director-General, Heritage Council.

The central legal issue was whether the Land and Environment Court correctly upheld the decision of the Director-General, Heritage Council, who had granted a consent for the respondents to carry out certain activities on their property. The appellant argued that the consent should be cancelled due to a change in circumstances, including the respondents' failure to adhere to the conditions of the consent, and that the Director-General's decision was therefore flawed. The respondents contended that the Land and Environment Court was correct in affirming the Director-General's decision, asserting that the change in circumstances did not warrant the cancellation of the consent. The court had to examine whether the Land and Environment Court properly applied the law in reviewing the Director-General's decision and whether the decision was legally sound.

In delivering the judgment, the Court of Appeal found that the Land and Environment Court did not err in dismissing the appeal. The court held that the Land and Environment Court correctly assessed the evidence and applied the appropriate legal principles in determining that the consent should not be cancelled. The Court of Appeal found that the change in circumstances did not justify the cancellation of the consent, as the respondents had not breached the conditions of the consent in a manner that warranted such a drastic measure. The Court of Appeal affirmed the decision of the Land and Environment Court, holding that the Director-General's decision was correctly made and should be upheld. The appeal was therefore dismissed, and the consent remained in effect. The court ordered that the costs of the appeal be paid by the appellant.