Bingman Catchment Landcare Group Incorporated v Bowdens Silver Pty Ltd [2024] NSWCA 205

Bingman Catchment Landcare Group Incorporated v Bowdens Silver Pty Ltd [2024] NSWCA 205

The 66kV transmission line was a component of the single proposed mine development for the purposes of s 4.38(4), although that provision did not itself require the IPC to determine the transmission line as part of the existing development application. Because the mine required external electrical power to be delivered by the transmission line, the likely impacts of that line were mandatory considerations under s 4.15(1)(b). The IPC proceeded on the mistaken basis that the transmission line would be separately assessed under Pt 5 and did not consider the transmission line or whether its impacts were likely impacts of the mine. That failure was jurisdictional error, and the consent was...

Jurisdiction
Australia
Judgment Date
16 August 2024
Procedural Posture
Appeal Under S 58 of the Land and Environment Court Act 1979 (nsw) From Dismissal of Judicial Review Proceedings Concerning Development Consent for State Significant Development / Court of Appeal Decision; Appeal Allowed
Outcome
Appeal allowed. The Land and Environment Court orders were set aside, development consent was declared void and of no effect, and the First Respondent was restrained from carrying out work in reliance on the consent.
Legal Topics
['jurisdictional Error' 'state Significant Development' 'mandatory Relevant Considerations' 'likely Environmental Impacts' 'development Consent' 'electricity Transmission Line' 'conditional Validity of Development Consents']
['administrative Law' 'environmental Planning and Assessment' 'judicial Review'] ['jurisdictional Error' 'state Significant Development' 'mandatory Relevant Considerations' 'likely Environmental Impacts' 'development Consent' 'electricity Transmission Line' 'conditional Validity of Development Consents']

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Procedural Posture

Appeal Under S 58 of the Land and Environment Court Act 1979 (nsw) From Dismissal of Judicial Review Proceedings Concerning Development Consent for State Significant Development / Court of Appeal Decision; Appeal Allowed

Legal Issues

  1. 1 ['Whether the 66kV transmission line was part of a single proposed development that is State significant development within the meaning of s 4.38(4) of the Environmental Planning and Assessment Act 1979 (NSW).' 'Whether s 4.38(4) required the Independent Planning Commission to treat the transmission line as part of the development application and directly assess its impacts in determining that application.' 'Whether the impacts of the transmission line were likely impacts of the mine development required to be considered under s 4.15(1)(b) of the Environmental Planning and Assessment Act 1979 (NSW).' 'Whether the Independent Planning Commission committed jurisdictional error by failing to consider whether the transmission line impacts were likely impacts of the proposed development.' 'Whether, instead of invalidating the consent, the Court should suspend the consent and specify terms for validation under ss 25B and 25C of the Land and Environment Court Act 1979 (NSW).']

Ratio Decidendi

The 66kV transmission line was a component of the single proposed mine development for the purposes of s 4.38(4), although that provision did not itself require the IPC to determine the transmission line as part of the existing development application. Because the mine required external electrical power to be delivered by the transmission line, the likely impacts of that line were mandatory considerations under s 4.15(1)(b). The IPC proceeded on the mistaken basis that the transmission line would be separately assessed under Pt 5 and did not consider the transmission line or whether its impacts were likely impacts of the mine. That failure was jurisdictional error, and the consent was...

Court Disposition

Appeal allowed. The Land and Environment Court orders were set aside, development consent was declared void and of no effect, and the First Respondent was restrained from carrying out work in reliance on the consent.

Orders

  • ['Appeal allowed.' 'Set aside the orders made by Land and Environment Court on 14 March 2024 and in lieu thereof declare that the development consent granted by the Second Defendant to the First Defendant on 3 April 2023 in respect of the Bowdens Silver Project is void and of no effect.' 'Order that the First...