Henry and Others v Shellharbour City Council and Others [2005] NSWLEC 378

Henry and Others v Shellharbour City Council and Others [2005] NSWLEC 378

Physical works, including the pilot study and preparatory works for the Shadforth wetland, constituted 'engineering or construction work' commenced before the lapse date under s 95(4) of the EP&A Act. Approval of an EMP for the Shadforth wetland prior to construction satisfied condition 15(b). Condition 15(d)(vi) was not relevant to the Shadforth EMP as no Aboriginal sites were identified, and consultation requirements were met sufficiently through nomination of Aboriginal representatives to committees. Consequently, applicants are not entitled to relief on the issues litigated to date.

Jurisdiction
Australia
Judgment Date
22 July 2005
Procedural Posture
Application for Declaratory and Injunctive Relief (class 4) / Interlocutory Judgment on Preliminary Issues Prior to Further Hearing
Outcome
Application for relief on the preliminary issues dismissed; hearing to continue for outstanding issues.
Legal Topics
['development Consent' 'conditions Precedent' 'aboriginal Heritage Protection' 'procedural Fairness' 'commencement of Development Work' 'valid Modification of Development Consent']
['planning and Environment Law' 'administrative Law'] ['development Consent' 'conditions Precedent' 'aboriginal Heritage Protection' 'procedural Fairness' 'commencement of Development Work' 'valid Modification of Development Consent']

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Procedural Posture

Application for Declaratory and Injunctive Relief (class 4) / Interlocutory Judgment on Preliminary Issues Prior to Further Hearing

Legal Issues

  1. 1 ['Whether development consent for the Shell Cove project had lapsed under s 95(4) of the Environmental Planning and Assessment Act 1979' 'Whether work relied upon as commencing the development was unauthorised or unlawful and thus ineffective to prevent lapse of consent' 'Whether there was failure to comply with conditions 14(b), 15(a), (b), (c), and (d)(vi) of the consent, particularly concerning Environmental Management Plans (EMPs)' 'Whether approvals of EMPs by the Director General are invalid due to non-compliance with condition 15(d)(vi)' 'Whether applicants and Aboriginal elders were denied natural justice due to lack of consultation']

Ratio Decidendi

Physical works, including the pilot study and preparatory works for the Shadforth wetland, constituted 'engineering or construction work' commenced before the lapse date under s 95(4) of the EP&A Act. Approval of an EMP for the Shadforth wetland prior to construction satisfied condition 15(b). Condition 15(d)(vi) was not relevant to the Shadforth EMP as no Aboriginal sites were identified, and consultation requirements were met sufficiently through nomination of Aboriginal representatives to committees. Consequently, applicants are not entitled to relief on the issues litigated to date.

Court Disposition

Application for relief on the preliminary issues dismissed; hearing to continue for outstanding issues.

Orders

  • ['Claims for relief in paragraphs 1, 2, 5, 6, 6A and 7 of the Further Amended Application Class 4 dated 19 June 2005 are dismissed.' 'Exhibits will be retained.' 'Costs to date reserved.']