Bay Simmer Investments Pty Ltd v State of New South Wales [2016] NSWLEC 23

Bay Simmer Investments Pty Ltd v State of New South Wales [2016] NSWLEC 23

The Tonin Report was not relevant or reasonably required for the just, quick and cheap resolution of the judicial review proceedings. The challenged approval was a staged development concept approval only and expressly did not authorise construction works, which were to be the subject of future development applications. The pleaded grounds turned on statutory construction and the decision-making approach, not on the precise extent of construction noise and vibration impacts. The report was prepared after the decision, was based on assumptions because construction details were unavailable, and could not assist the mandatory relevant consideration, failure to inquire, manifest...

Jurisdiction
Australia
Judgment Date
23 March 2016
Procedural Posture
Class 4 Judicial Review Proceedings / Notice of Motion Dated 3 December 2015 Seeking a Direction Under R 31.19 of the Uniform Civil Procedure Rules 2005 (nsw) to Adduce Expert Evidence
Outcome
The Applicant's Notice of Motion dated 3 December 2015 was dismissed, with costs to be paid by the Applicant to the First Respondent.
Legal Topics
['staged Development Application' 'concept Approval' 'mandatory Relevant Considerations' 'failure to Make Inquiries' 'manifest Unreasonableness' 'expert Evidence in Judicial Review' 'construction Noise and Vibration Impacts' 'costs']
['environmental Planning and Assessment' 'administrative Law' 'civil Procedure'] ['staged Development Application' 'concept Approval' 'mandatory Relevant Considerations' 'failure to Make Inquiries' 'manifest Unreasonableness' 'expert Evidence in Judicial Review' 'construction Noise and Vibration Impacts' 'costs']

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 1 Authorities cited 2 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Procedural Posture

Class 4 Judicial Review Proceedings / Notice of Motion Dated 3 December 2015 Seeking a Direction Under R 31.19 of the Uniform Civil Procedure Rules 2005 (nsw) to Adduce Expert Evidence

Legal Issues

  1. 1 ["Whether the Minister's delegate was obliged to assess noise and vibration impacts from construction when approving the staged development concept proposal." 'Whether the Tonin Report was relevant or reasonably required to resolve the pleaded judicial review grounds.' 'Whether a direction should be made under r 31.19 of the Uniform Civil Procedure Rules 2005 (NSW) allowing the Applicant to adduce expert acoustic evidence.' 'Whether costs of the Notice of Motion should follow the event.']

Ratio Decidendi

The Tonin Report was not relevant or reasonably required for the just, quick and cheap resolution of the judicial review proceedings. The challenged approval was a staged development concept approval only and expressly did not authorise construction works, which were to be the subject of future development applications. The pleaded grounds turned on statutory construction and the decision-making approach, not on the precise extent of construction noise and vibration impacts. The report was prepared after the decision, was based on assumptions because construction details were unavailable, and could not assist the mandatory relevant consideration, failure to inquire, manifest...

Court Disposition

The Applicant's Notice of Motion dated 3 December 2015 was dismissed, with costs to be paid by the Applicant to the First Respondent.

Orders

  • ["The Applicant's Notice of Motion dated 3 December 2015 is dismissed." "The Applicant must pay the First Respondent's costs of the Notice of Motion."]