Australians for Sustainable Development Inc v Minister for Planning [2011] NSWLEC 33

Australians for Sustainable Development Inc v Minister for Planning [2011] NSWLEC 33

The Minister's post-hearing amendment to SEPP 55 under s 75R(3A) of the Environmental Planning and Assessment Act 1979 made cl 17 and related provisions inapplicable to these two Barangaroo projects. While but for the amendment the applicant would have succeeded in establishing breach of cl 17(1)(c) due to the lack of adequate, consent-authority-approved, guideline-compliant RAPs, the amendment deprived the challenge of its foundation. Other grounds, including failures to consider ESD principles or to make requisite enquiries, were not made out. Accordingly, the proceedings must be dismissed.

Parties
Applicant: Australians for Sustainable Development Inc; First Respondent: Minister for Planning; Second Respondent: Lend Lease (Millers Point) Pty Ltd; Third Respondent: Barangaroo Delivery Authority
Jurisdiction
Australia
Judgment Date
10 March 2011
Procedural Posture
Judicial Review / Principal Judgment After Trial
Outcome
Proceedings dismissed
Legal Topics
Judicial Review, State Environmental Planning Policy No 55 Remediation of Land (sepp 55), Environmental Planning and Assessment Act 1979 (nsw) Part 3 a Projects, Contaminated Land, Remediation Plans, Ecologically Sustainable Development (esd) Principles, Development Approvals, Costs Orders
Planning and Environment Law Administrative Law Judicial Review State Environmental Planning Policy No 55 Remediation of Land (sepp 55) Environmental Planning and Assessment Act 1979 (nsw) Part 3 a Projects Contaminated Land Remediation Plans Ecologically Sustainable Development (esd) Principles +2 more

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Parties

Australians for Sustainable Development Inc

Applicant

Minister for Planning

First Respondent

Lend Lease (Millers Point) Pty Ltd

Second Respondent

Barangaroo Delivery Authority

Third Respondent

Procedural Posture

Judicial Review / Principal Judgment After Trial

Legal Issues

  1. 1 Whether approvals were invalid or proponents should be restrained from carrying out project work due to non-compliance with SEPP 55
  2. 2 Whether remedial action plans (RAPs) complied with cl 17(1)(c) of SEPP 55
  3. 3 Applicability of SEPP 55 cl 17(1)(c) to Part 3A projects

Ratio Decidendi

The Minister's post-hearing amendment to SEPP 55 under s 75R(3A) of the Environmental Planning and Assessment Act 1979 made cl 17 and related provisions inapplicable to these two Barangaroo projects. While but for the amendment the applicant would have succeeded in establishing breach of cl 17(1)(c) due to the lack of adequate, consent-authority-approved, guideline-compliant RAPs, the amendment deprived the challenge of its foundation. Other grounds, including failures to consider ESD principles or to make requisite enquiries, were not made out. Accordingly, the proceedings must be dismissed.

Court Disposition

Proceedings dismissed

Orders

  • Proceedings dismissed
  • Costs reserved. Unless a party applies within three working days for a different costs order accompanied by written submissions, respondents are to pay applicant's costs and first respondent is to pay those costs on an indemnity basis