Farley Environment Care Inc. v HL Fry Properties Pty Ltd [2021] NSWLEC 77

Farley Environment Care Inc. v HL Fry Properties Pty Ltd [2021] NSWLEC 77

Leave to adduce the proposed expert evidence was granted because the funeral and cemeteries evidence was permissible, relevant and reasonably necessary to assist the Court in resolving the characterisation of the approved development under the Maitland LEP, and the ecological evidence was reasonably necessary to address whether clearing thresholds requiring a BDAR were triggered, including because the relevance of the Concept Plan issue depended on questions better left to the final hearing.

Jurisdiction
Australia
Judgment Date
20 July 2021
Procedural Posture
Class 4 Judicial Review Proceedings Challenging Development Consents / Interlocutory Notice of Motion Seeking Leave to Adduce Expert Evidence
Outcome
Prayers 2 and 3 in the further amended notice of motion dated 24 June 2021 were made.
Legal Topics
['leave to Adduce Expert Evidence' 'judicial Review of Development Consents' 'characterisation of Development Consent' 'prohibited Development' 'biodiversity Development Assessment Report' 'jurisdictional Fact' 'concept Development Applications']
['environmental Planning and Assessment' 'biodiversity Conservation' 'civil Procedure' 'evidence'] ['leave to Adduce Expert Evidence' 'judicial Review of Development Consents' 'characterisation of Development Consent' 'prohibited Development' 'biodiversity Development Assessment Report' 'jurisdictional Fact' 'concept Development Applications']

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Procedural Posture

Class 4 Judicial Review Proceedings Challenging Development Consents / Interlocutory Notice of Motion Seeking Leave to Adduce Expert Evidence

Legal Issues

  1. 1 ['Whether leave should be granted to adduce expert evidence from a funeral and cemeteries consultant about the proposed crematorium, cemetery, funeral home and mortuary uses.' 'Whether leave should be granted to adduce expert ecological evidence about whether the Stage 2 development and the Concept Plan and Stage 1 consent required clearing triggering a biodiversity development assessment report.' 'Whether the characterisation of the approved development and whether a BDAR was required raised jurisdictional facts for which evidence not before the consent authority could be admitted.']

Ratio Decidendi

Leave to adduce the proposed expert evidence was granted because the funeral and cemeteries evidence was permissible, relevant and reasonably necessary to assist the Court in resolving the characterisation of the approved development under the Maitland LEP, and the ecological evidence was reasonably necessary to address whether clearing thresholds requiring a BDAR were triggered, including because the relevance of the Concept Plan issue depended on questions better left to the final hearing.

Court Disposition

Prayers 2 and 3 in the further amended notice of motion dated 24 June 2021 were made.

Orders

  • ['The parties are granted leave to adduce expert evidence from an expert funeral and cemeteries consultant on the questions set out in prayer 2 of the further amended notice of motion dated 24 June 2021.' 'The parties are granted leave to adduce expert evidence from an expert ecologist on the questions set out in...