Wykanak v Nussli Special Events Pty Limited
[2000] NSWLEC 187
•08/03/2000
Land and Environment Court
of New South Wales
CITATION: Wykanak v Nussli Special Events Pty Limited & Ors [2000] NSWLEC 187 PARTIES: APPLICANT
RESPONDENT
Wykanak
Nussli Special Events Pty Limited & OrsFILE NUMBER(S): 40108 of 2000 CORAM: Cowdroy J KEY ISSUES: Development Consent :- interlocutory relief - application for injunction - statute prohibiting institution of proceedings in relation to development for purposes of Olympic Games - application dismissed. LEGISLATION CITED: Environmental Planning and Assessment Act 1979
Olympic Arrangements Act, Act No 1 of 2000
Olympic Co-ordination Authority Act, Act No 1 of 1995CASES CITED: Wykanak v Director General of Department of Urban Affairs and Planning and Anor (1999-2000) 105 LGERA 295 DATES OF HEARING: 3/08/00 EX TEMPORE
JUDGMENT DATE :08/03/2000 LEGAL REPRESENTATIVES:
APPLICANT
In personSOLICITORS
n/a
FIRST RESPONDENT
Ms Reid (Solicitor)SOLICITORS
Colquhoun & ColquhounSECOND RESPONDENT
No appearanceTHIRD & FIFTH RESPONDENTS
Mr A Galasso (Barrister)SOLICITORS
Clayton UtzFOURTH RESPONDENT
SOLICITORS
Mr Water
IV Knight
JUDGMENT:
IN THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALESMATTER No. 40108 of 2000
CORAM: Cowdroy J
DECISION DATE: 3/8/00
Applicant
First Respondent
Second Respondent
Third Respondent
Fourth Respondent
Fifth Respondent
1. By application class four filed on 26 July 2000, Dominic Wykanak (“the applicant”) seeks a declaration that consent to development application no s 38/5/99 (“the consent”) lodged with the Department of Urban Affairs and Planning on 3 August 1999 and the Statement of Environmental Effects dated July 1999 prepared by S A Schmitz & Associates Pty Limited are invalid. Consequential orders are sought. The applicant also claims by way of interlocutory relief orders restraining the execution of any further work pursuant to the consent comprising the development of the Bondi Beach Olympic volleyball stadium (“the development”). In support the applicant relies upon an affidavit sworn by him on 26 July 2000 and submits that the consent is invalid on three grounds.
2. Firstly, the applicant submits that the advertising process for the application for development consent as provided by State Environmental Planning Policy No 38 was not carried out correctly. This matter was the subject of a claim by the present applicant in this Court heard by Lloyd J in the matter of Wykanak v Director General of Department of Urban Affairs and Planning and Anor (1999-2000) 105 LGERA 295. As a result of that hearing the Court ordered that such claim be struck out.
3. The second basis upon which the applicant seeks to challenge the development consent is one which has not, at least in this Court, been previously raised. It is alleged that whilst the development application refers to the consent of all owners having been obtained, the consent of the Darug People was not obtained. A claim has been instituted pursuant to native title legislation in the Federal Court of Australia by the Darug People in relation to Bondi Beach which is yet to be determined. At present there is no judgment which establishes that the Darug People have any claim to such land.
4. As to the third ground of challenge it is submitted that the Olympic Arrangements Act , Act No 1 of 2000 (“the OA Act”) may not have the effect of nullifying claims which are validly made for native title. The applicant foreshadowed that there may be constitutional questions arising out of alleged inconsistency between the Commonwealth native title legislation and the OA Act.
5. The Olympic Co-ordination Authority is a statutory corporation created pursuant to the provisions of the Olympic Co-ordination Authority Act, Act No 10 of 1995. Pursuant to s 4 of that Act the Olympic Co-ordination Authority is established as a body corporate. That Authority is for the purposes of any other act a statutory body representing the Crown as is provided in s 5 of that Act. On 1 October 1999 the Olympic Co-ordination Authority was granted the consent by the Minister for Urban Affairs and Planning pursuant to s 91 of the Environmental Planning and Assessment Act 1979 and cl 7 of the State Environmental Planning Policy No 38, Olympic Games and Related Projects for development of a volleyball stadium on Bondi Beach.
6. Section 20(1) of the OA Act provides:-
A development consent granted or purporting to have been granted before the commencement of this section by the Minister for Urban Affairs and Planning in accordance with State Environmental Planning Policy No 38, Olympic Games and Related Projects, is validated (to the extent of any invalidity).
7. Section 20(1) of the OA Act came into operation on 9 June 2000. The relevant consent was granted before the commencement of that Act, namely, on 1 October 1999. Accordingly, the New South Wales Parliament has validated any consent as provided in s 20(1) of the OA Act. As a consequence is that this Court is bound to regard the consent as valid. The Court is therefore powerless to entertain the proceedings which are now instituted by the applicant. Even if there had been any irregularity in the advertising process that irregularity cannot be the subject of challenge in view of s 20(1) of the OA Act since consent has been granted.
8. It is also relevant to consider the provisions of s 123 of the Environmental Planning and Assessment Act 1979 (“the EPA Act”) which empowers any person to bring proceedings in this Court for an order to remedy or restrain a breach of that Act whether or not any right of that person has been or may be infringed by or as a consequence of that breach.
9. Had there been a breach of the EPA Act s 123(1) thereof would entitle the applicant to bring the proceedings. However, s 123(4) specifically removes any power of this Court to grant relief where the action or the proceedings relate to development for the purpose of the forthcoming Olympic Games. Section 123(4) 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. There is nothing before the Court which suggests that the development the subject of the consent is not being carried out in accordance with the Olympic Co-ordination Authority Act 1995. Accordingly this Court cannot grant the relief which is sought in the application.
11. In view of the foregoing the Court dismisses the application.
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