Bay Simmer Investments Pty Ltd v The State of New South Wales [2016] NSWLEC 123

Bay Simmer Investments Pty Ltd v The State of New South Wales [2016] NSWLEC 123

The consent was for a staged development concept proposal only and expressly did not authorise construction works. On the proper construction of Div 2A and Div 4.1 of Pt 4 of the Environmental Planning and Assessment Act 1979 (NSW), s 79C applied only to matters relevant to that concept proposal. Construction impacts were not mandatory relevant considerations for the delegate at this stage, and would be assessed in later development applications when construction was sought. Because there was no duty to consider or inquire into construction impacts, the alleged failures under s 79C(1)(b), s 79C(1)(d), failure to inquire and Wednesbury unreasonableness were not made out.

Jurisdiction
Australia
Judgment Date
21 September 2016
Procedural Posture
Class 4 Judicial Review Proceedings Challenging the Grant of Development Consent Under S 89 E of the Environmental Planning and Assessment Act 1979 (nsw) for a Staged Development Concept Proposal for the Walsh Bay Arts Precinct / Principal Judgment
Outcome
The Applicant's Amended Summons was dismissed.
Legal Topics
['state Significant Development' 'staged Development Applications' 'concept Proposals' 'mandatory Relevant Considerations' 'construction Impacts' 'wednesbury Unreasonableness' 'failure to Make Inquiries' 'costs']
['environmental Law' 'planning Law' 'administrative Law' 'judicial Review'] ['state Significant Development' 'staged Development Applications' 'concept Proposals' 'mandatory Relevant Considerations' 'construction Impacts' 'wednesbury Unreasonableness' 'failure to Make Inquiries' 'costs']

Case Brief

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Procedural Posture

Class 4 Judicial Review Proceedings Challenging the Grant of Development Consent Under S 89 E of the Environmental Planning and Assessment Act 1979 (nsw) for a Staged Development Concept Proposal for the Walsh Bay Arts Precinct / Principal Judgment

Legal Issues

  1. 1 ['Whether construction impacts of the Walsh Bay Arts Precinct, including noise, vibration, dust and construction-related traffic impacts, were mandatory relevant considerations under s 79C(1)(b) when determining the staged state significant development application for a concept proposal.' 'Whether the delegate failed to comply with s 79C(1)(d) by not considering submissions concerning construction impacts.' 'Whether the delegate constructively failed to exercise power by failing to make inquiries about construction impacts.' "Whether the delegate's decision not to take construction impacts into account was unreasonable in the Wednesbury sense."]

Ratio Decidendi

The consent was for a staged development concept proposal only and expressly did not authorise construction works. On the proper construction of Div 2A and Div 4.1 of Pt 4 of the Environmental Planning and Assessment Act 1979 (NSW), s 79C applied only to matters relevant to that concept proposal. Construction impacts were not mandatory relevant considerations for the delegate at this stage, and would be assessed in later development applications when construction was sought. Because there was no duty to consider or inquire into construction impacts, the alleged failures under s 79C(1)(b), s 79C(1)(d), failure to inquire and Wednesbury unreasonableness were not made out.

Court Disposition

The Applicant's Amended Summons was dismissed.

Orders

  • ["The Applicant's Amended Summons is dismissed." "The Applicant is to pay the First Respondent's costs as agreed or assessed unless a Notice of Motion seeking other orders is filed by any party within 14 days of this judgment." 'The exhibits are to be returned.']