Balnaves Foundation Pty Ltd v Minister for Planning (No 2) [2018] NSWLEC 163

Balnaves Foundation Pty Ltd v Minister for Planning (No 2) [2018] NSWLEC 163

Clause 15A of the Regulation was validly enacted as a savings or transitional provision consequent on the enactment of the Environmental Planning and Assessment Amendment Act 2008, and was authorised by the transitional regulation-making power in s 159 and cl 1(1) of Sch 6 to the EPAA as well as the general regulation-making power in s 157. It was therefore not inconsistent with the EPAA, and the imposition of condition 13 of the consent was lawful.

Jurisdiction
Australia
Judgment Date
19 October 2018
Procedural Posture
Judicial Review / Principal Judgment
Outcome
Summons dismissed
Legal Topics
['validity of Delegated Legislation' 'statutory Construction' 'environmental Planning Instruments' 'transitional and Savings Provisions']
['administrative Law' 'planning Law'] ['validity of Delegated Legislation' 'statutory Construction' 'environmental Planning Instruments' 'transitional and Savings Provisions']

Case Brief

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Procedural Posture

Judicial Review / Principal Judgment

Legal Issues

  1. 1 ['Whether the consent authority had the power to impose a condition requiring contributions to be paid' 'Whether a regulation empowering the imposition of a condition is inconsistent with the primary enactment authorising the making of the regulation' "Whether the regulation is 'of a savings or transitional nature' and 'consequent on' the enactment of a later Act" 'Whether the regulation was validly enacted and the imposition of condition of consent lawful']

Ratio Decidendi

Clause 15A of the Regulation was validly enacted as a savings or transitional provision consequent on the enactment of the Environmental Planning and Assessment Amendment Act 2008, and was authorised by the transitional regulation-making power in s 159 and cl 1(1) of Sch 6 to the EPAA as well as the general regulation-making power in s 157. It was therefore not inconsistent with the EPAA, and the imposition of condition 13 of the consent was lawful.

Court Disposition

Summons dismissed

Orders

  • ['The summons is dismissed.' "The applicant must pay the respondents' costs." 'The exhibits are to be returned.']