The Next Generation Pty Limited v Independent Planning Commission (No 2)

[2020] NSWLEC 16

Land and Environment Court

New South Wales

Medium Neutral Citation:	The Next Generation Pty Limited v Independent Planning Commission (No 2) [2020] NSWLEC 16
Hearing dates:	17 February 2020
Date of orders:	17 February 2020
Decision date:	17 February 2020
Jurisdiction:	Class 1
Before:	Moore J
Decision:	See decision at [8]
Catchwords:	INTERESTED PARTY - consideration of basis to permit an interested party to be heard - party to be heard pursuant to discretion given by s 38(2) of Land and Environment Court Act 1979 - no need to determine what might be the extent of the rights of an interested party to be heard pursuant to s 8.12(3) of the Environmental Planning and Assessment Act 1979
Legislation Cited:	Environmental Planning and Assessment Act 1979, s 8.12(3) Land and Environment Court Act 1979, s 38(2)
Category:	Procedural and other rulings
Parties:	The Next Generation Pty Limited (Applicant) Independent Planning Commission (First Respondent) Blacktown City Council (Second Respondent) Jacfin Pty Ltd (Interested Party)
Representation:	Counsel: Mr I Hemmings SC/Mr M Seymour, barrister (Applicant) Ms J McKelvey, barrister (First Respondent) Mr M Astill, barrister (Second Respondent) Mr P Tomasetti SC (Interested Party)   Solicitors: Mills Oakley (Applicant) Department of Planning, Industry and Environment (First Respondent) Clayton Utz (Second Respondent) HWL Ebsworth (Interested Party)
File Number(s):	13009 of 2019
Publication restriction:	No

EXTEMPORE JUDGMENT

1. HIS HONOUR: Jacfin Pty Limited (Jacfin) attends before me this morning, seeking to assert that, as a consequence of s 8.12(3) of the Environmental Planning and Assessment Act 1979 (the EP&A Act), it has an entitlement to be heard on the substantive development application, an application to amend the development proposal. The question of whether or not Jacfin has an entitlement to be heard at this interlocutory hearing is a matter of substantial conflict, as is, for the future, the question of what rights, if any, beyond being heard, might attend upon Jacfin as part of the process.

2. I note, although it seems to me under the circumstances it is of limited concern in these proceedings, that the right that now exists under s 8.12(3) differs to some extent from the right which formerly existed in the EP&A Act prior to the coming into effect of amendments some 12 months or so ago, where the right was in s 97A of the EP&A Act in what some might consider mildly more expansive terms.

3. I have had the opportunity to examine submissions that Mr Tomasetti SC, counsel for Jacfin, proposes to make on behalf of Jacfin, if I permit them to be heard.

4. I indicated earlier that, whether or not there is an entitlement pursuant to s 8.12(3) of the EP&A Act for Jacfin to be heard, I do have the discretionary power to permit them to be heard, pursuant to s 38(2) of the Land and Environment Court Act 1979 (the Court Act).

5. I am satisfied, on the basis of the proximity of Jacfin’s land to the land owned by The Next Generation Pty Limited (the Applicant), or at least land which is the subject of their development proposal, (whether it is owned by them or by somebody else being irrelevant for these purposes), that it is appropriate to permit them to be heard as a matter of discretion, pursuant to s 38(2) of the Court Act. That defers for some later time and some later decision-maker what rights attach to Jacfin’s right to be heard pursuant to s 8.12(3) of the EP&A Act.

6. I should indicate that, in reaching this conclusion, I have read, for the purposes of a preliminary understanding of the matters that Jacfin proposes to put to me this morning, material that discloses that they relate to matters of substantial merit on the application as well as matters of discretion.

7. It seems to me, on my reading of Mr Astill’s submissions on behalf of the Blacktown City Council (the Council), the Council being the Second Respondent to the proceedings, that Jacfin’s submissions differ from and are in some extent substantively going beyond the matters pressed by the Council.

8. I will hear Mr Tomasetti on that basis.

**********