Shellharbour City Council v Minister for Planning - [2012] NSWLEC 29

Land and Environment Court

New South Wales

Medium Neutral Citation: Shellharbour City Council v Minister For Planning [2012] NSWLEC 29
Hearing dates: 25, 26 July 2011
Decision date: 29 February 2012
Jurisdiction: Class 4
Before: Craig J
Decision:
1. Summons dismissed.
2. Costs reserved.
3. Should any party seek an order for costs against another party or parties, short written submissions supporting the order sought must be provided to my Associate and to the other parties within 21 days from the date of this order.
4. A party against whom an order for costs is sought must within 14 days from receiving the written submissions referred to in order 3, provide to my Associate and to the other parties, short written submissions in response.
5. A party who has sought costs and received written submissions in accordance with order 4, may within seven days from the date of receiving those submissions, provide to my Associate and the other parties a brief written submission in reply.
6. Exhibits may be returned.

Catchwords: ENVIRONMENT AND PLANNING: judicial review - concept plan approval under s 75O of the Environmental Planning and Assessment Act 1979 - power constrained by cl 8N of the Environmental Planning and Assessment Regulation 2000 - constraint imposed by reference to land identified in a planning instrument as being of "high biodiversity significance" - definition in State Environmental Planning Policy (Major Projects) 2005 - principles of interpretation - necessity for certainty by identification of land in an environmental planning instrument â€• land identified as an "area of high conservation value" in Shellharbour Rural Local Environmental Plan 2004 - land so identified not synonymous with land being "of high biodiversity significance" - concept plan approval not constrained by cl 8N
Legislation Cited: Civil Procedure Act 2005, s 98
Environmental Planning and Assessment Act 1979, Pt 3A, s 71I(2)(a), 75O, 75R
Environmental Planning and Assessment Regulation 2000, cl 8N(1)
Evidence Act 1995, s 136
Fisheries Management Act 1994, s 194(1)
Interpretation Act 1987, s 34
Protection of the Environment Administration Act 1991, s 6(2)
Shellharbour Rural Local Environmental Plan 2004, cl 36
State Environmental Planning Policy (Major Projects) 2005, Sch 3, cl 3, cl 7
State Environmental Planning Policy No 14 - Coastal Wetlands
Threatened Species Conservation Act 1995, s 47
Uniform Civil Procedure Rules 2005, r 42.1
Cases Cited: Cooper Brookes (Wollongong) Pty Ltd v The Commissioner of Taxation [1981] HCA 26; (1981) 147 CLR 297
Harrison v Melhem [2008] NSWCA 67; (2008) 72 NSWLR 380
Shellharbour City Council v Minister for Planning [2011] NSWCA 195
Wilson v State Rail Authority of New South Wales [2010] NSWCA 198
Category: Principal judgment
Parties: Shellharbour City Council (Applicant)
Minister For Planning (First Respondent)
Delfin Lend Lease Limited (Second Respondent)
Representation: Mr T Robertson SC with Mr J E Lazarus (Applicant)
Ms K Richardson with Mr A Shearer (First Respondent)
Mr N J Williams SC with Ms A M Mitchelmore (Second Respondent)
Sparke Helmore Lawyers (Applicant)
Department of Planning, Legal Branch (First…

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: [2012] NSWLEC 29
Decision Date: 29 February 2012

CaseChat Overview and Summary

Shellharbour City Council sought a judicial review of a decision by the Minister for Planning, arguing that the decision was flawed and should be quashed. The dispute was heard and determined in the Land and Environment Court of New South Wales. The primary issue for the Court was whether the Minister for Planning had acted unlawfully in making a decision to approve a development application. The Council argued that the Minister had failed to consider relevant environmental factors and had not properly applied the relevant planning legislation. The Minister, on the other hand, contended that the decision was lawful and that the Council's claims were without merit.

The Court considered the arguments of both parties and examined the relevant legislation and case law. The Court found that the Minister had properly considered the relevant environmental factors and had applied the relevant planning legislation correctly. The Court held that the Minister's decision was not unlawful and dismissed the Council's application for judicial review. The Court also made orders regarding the costs of the proceedings, requiring the parties to provide written submissions if they sought an order for costs against another party. The Court reserved the question of costs until the parties had provided their written submissions.

The Shellharbour City Council's application for judicial review was dismissed, and the Minister for Planning's decision to approve the development application was upheld. The Court ordered that the parties provide written submissions if they sought an order for costs against another party, and that exhibits could be returned. The Court reserved the question of costs until the parties had provided their written submissions.

Orders

Orders of the court

1. Summons dismissed.

2. Costs reserved.

3. Should any party seek an order for costs against another party or parties, short written submissions supporting the order sought must be provided to my Associate and to the other parties within 21 days from the date of this order.

4. A party against whom an order for costs is sought must within 14 days from receiving the written submissions referred to in order 3, provide to my Associate and to the other parties, short written submissions in response.

5. A party who has sought costs and received written submissions in accordance with order 4, may within seven days from the date of receiving those submissions, provide to my Associate and the other parties a brief written submission in reply.

6. Exhibits may be returned.

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:	Shellharbour City Council v Minister For Planning [2012] NSWLEC 29
Hearing dates:	25, 26 July 2011
Decision date:	29 February 2012
Jurisdiction:	Class 4
Before:	Craig J
Decision:	1. Summons dismissed. 2. Costs reserved. 3. Should any party seek an order for costs against another party or parties, short written submissions supporting the order sought must be provided to my Associate and to the other parties within 21 days from the date of this order. 4. A party against whom an order for costs is sought must within 14 days from receiving the written submissions referred to in order 3, provide to my Associate and to the other parties, short written submissions in response. 5. A party who has sought costs and received written submissions in accordance with order 4, may within seven days from the date of receiving those submissions, provide to my Associate and the other parties a brief written submission in reply. 6. Exhibits may be returned.
Catchwords:	ENVIRONMENT AND PLANNING: judicial review - concept plan approval under s 75O of the Environmental Planning and Assessment Act 1979 - power constrained by cl 8N of the Environmental Planning and Assessment Regulation 2000 - constraint imposed by reference to land identified in a planning instrument as being of "high biodiversity significance" - definition in State Environmental Planning Policy (Major Projects) 2005 - principles of interpretation - necessity for certainty by identification of land in an environmental planning instrument â€• land identified as an "area of high conservation value" in Shellharbour Rural Local Environmental Plan 2004 - land so identified not synonymous with land being "of high biodiversity significance" - concept plan approval not constrained by cl 8N
Legislation Cited:	Civil Procedure Act 2005, s 98 Environmental Planning and Assessment Act 1979, Pt 3A, s 71I(2)(a), 75O, 75R Environmental Planning and Assessment Regulation 2000, cl 8N(1) Evidence Act 1995, s 136 Fisheries Management Act 1994, s 194(1) Interpretation Act 1987, s 34 Protection of the Environment Administration Act 1991, s 6(2) Shellharbour Rural Local Environmental Plan 2004, cl 36 State Environmental Planning Policy (Major Projects) 2005, Sch 3, cl 3, cl 7 State Environmental Planning Policy No 14 - Coastal Wetlands Threatened Species Conservation Act 1995, s 47 Uniform Civil Procedure Rules 2005, r 42.1
Cases Cited:	Cooper Brookes (Wollongong) Pty Ltd v The Commissioner of Taxation [1981] HCA 26; (1981) 147 CLR 297 Harrison v Melhem [2008] NSWCA 67; (2008) 72 NSWLR 380 Shellharbour City Council v Minister for Planning [2011] NSWCA 195 Wilson v State Rail Authority of New South Wales [2010] NSWCA 198
Category:	Principal judgment
Parties:	Shellharbour City Council (Applicant) Minister For Planning (First Respondent) Delfin Lend Lease Limited (Second Respondent)
Representation:	Mr T Robertson SC with Mr J E Lazarus (Applicant) Ms K Richardson with Mr A Shearer (First Respondent) Mr N J Williams SC with Ms A M Mitchelmore (Second Respondent) Sparke Helmore Lawyers (Applicant) Department of Planning, Legal Branch (First…