Wykanak v Director General of the Department of Urban Affairs & Planning

[1999] NSWLEC 221

Land and Environment Court

of New South Wales

CITATION:	Wykanak v Director General of the Department of Urban Affairs & Planning & Anor [1999] NSWLEC 221
PARTIES	APPLICANT: Dominic Wykanak
FIRST RESPONDENT: Director General for Urban Affairs & Planning SECOND RESPONDENT: Minister for Urban Affairs & Planning for New South Wales
NUMBER:	40148 of 1999
CORAM:	Lloyd J
KEY ISSUES:	Judicial Review :- whether applicant precluded by privative provision from bringing proceedings
LEGISLATION CITED:	Environmental Planning & Assessment Act 1979, s 123(4) Olympic Co-ordination Authority Act 1995 State Environment Planning Policy No 38
DATES OF HEARING:	08/26/1999
EX TEMPORE JUDGMENT DATE:	08/26/1999
LEGAL REPRESENTATIVES:	APPLICANT: B Levet (Barrister) SOLICITORS: Duker & Associates FIRST AND SECOND RESPONDENTS: A E Galasso (Barrister) SOLICITOR: Ms C Hanson

JUDGMENT:

IN THE LAND AND Matter No: 40148 of 1999

ENVIRONMENT COURT Coram: Lloyd J

OF NEW SOUTH WALES Decision date: 26 August 1999

Wykanak

Applicant

v

Director General of the Department of Urban Affairs & Planning & Anor

Respondent

JUDGMENT

HIS HONOUR:

1. This is a notice of motion by the second respondent, the Minister for Urban Affairs and Planning, that the application brought by the applicant be struck out. The application brought by the applicant seeks both final relief and interlocutory relief. It is agreed that if the strikeout application is successful it will dispose of both kinds of relief, that is to say the claim for final relief as well as the claim for interlocutory relief.

2. The applicant claims that the first respondent, the Director General of the Department of Urban Affairs and Planning, has failed to comply with State Environmental Planning Policy 38 in that she has failed to properly exhibit development application numbered S38/5/99 for the required period. The applicant claims an order in the nature of mandamus requiring the first respondent to comply with that State policy by properly exhibiting the development application for a period of fourteen days; and an order that the second respondent, the Minister, be restrained from determining the development application or any application in respect of the subject matter of that development application, namely the Olympic Games beach volleyball venue, until the first respondent has complied with the policy.

3. The applicant brings these proceedings in reliance upon s 123(1) of the Environmental Planning and Assessment Act 1979 and State Environmental Planning Policy 38 . Section 123(1) of the Act provides:

Any person may bring proceedings in the Court for an order to remedy or restrain a breach of the Act whether or not any right of that person has been or may be infringed by or as a consequence of that breach .

4. Section 122 of the Act defines a reference to a breach of the Act as a reference to a contraventional failure to comply with the Act; and a reference to the Act includes a reference to, inter alia , an environmental planning instrument.

5. The relevant environmental planning instrument is State Environmental Planning Policy 38 which is headed " Olympic Games and Related Projects ". An “ Olympic Games project ” is defined in cl 3 as meaning:

Any development that is required for hosting the Games of the XXVII Olympiad or Paralympic Games in Sydney in the year 2000 and which comprises development for any one or more of a “ number of purposes, including” venues to conduct Olympic Games or Paralympic Games sporting events;

6. By cl 4 of the Policy, the Policy applies to the Sydney region, which includes the site of the proposed Olympic Games beach volleyball venue at Bondi Beach. Clause 9 imposes certain duties upon the respondents. In particular it requires the Director of Planning, that is, the first respondent:

to publicly exhibit any application made for consent to development to which this clause applies for a period of at least 14 days after receipt of the application and before its determination by the Minister for Urban Affairs & Planning (cl 9(2)) .

7. Development to which this clause applies includes “ the provision of any venue or facility that is capable of accommodating or being used in conjunction with, Olympic events likely in the opinion of the Director of Planning to attract over 5,000 people at one time (cl 9(1))” .

8. The development application in the present case has been made by the Olympic Co-ordination Authority and the proposed development is described as being temporary facilities for Olympic beach volleyball at Bondi Beach for the Olympic Games in 2000 including, amongst other works, the erection and use of temporary structures including a 10,000 seat main stadium and a 400 seat stand for the secondary court and other works. It is clear, therefore, that the development which is the subject of the development application is development to which cl 9 of State Environmental Planning Policy 38 applies.

9. The respondent challenges the standing of the applicant to bring these proceedings and relies upon s 123(4) of the Environmental Planning & Assessment Act which provides:

Proceedings under this section may not be brought in connection with development, or an activity, carried out by, for or on behalf of the Olympic Co-ordination Authority in accordance with the Olympic Co-ordination Authority Act 1995 .

10. The Olympic Co-ordination Authority Act 1995 constitutes a body with the corporate name of the Olympic Co-ordination Authority (s 4). That Authority has the power to erect buildings and structures and to carry out works on land owned by it, or, with the consent of the owner of the land, on any other land (s 16(3)). S 22 is an interpretation provision and it provides:

(1) For the purposes of this Part, development is carried out by the Authority if:

(a) the development is carried out by, for or on behalf of the Authority, or

(b) the Authority makes the application for development consent for the development .

11. As I have noted, in the present case the Authority has made the application for development consent for the Olympic beach volleyball facility at Bondi Beach. The development is one which falls within s 123(4) of the Environmental Planning & Assessment Act as being development carried out by, for or on behalf of the Olympic Coordination Authority.

12. The applicant asserts that he is not seeking to restrain the carrying out of that development, but is seeking to restrain the infringement of a requirement of the Act, that is to say, a requirement to advertise set out in an environmental planning instrument and, therefore, it is said that s 123(4) does not apply. It seems to me, however, that this gives to the words " in connection with development " in s 123(4) no work to do. It is clear, in my view, that the making of the development application is something that is being done “ in connection with development ”. The words " in connection with " are words of wide import and, as is submitted by the respondents, includes all matters logically necessary and incidental to development. That, in my view, necessarily resolves the question in favour of the respondents. That is to say, the applicant in this case is excluded by the operation of s 123(4) from bringing and maintaining these proceedings.

13. It follows that the relief sought in the notice of motion should be granted. That is to say, the application should be struck out. The exhibits shall remain with the Court.

[COUNSEL ADDRESSED ON COSTS]

HIS HONOUR: The applicant shall pay the costs of the notice of motion.