Minister for Planning & Anor. v. Gales Holdings Pty. Limited [2006] NSWCA 212

Minister for Planning & Anor. v. Gales Holdings Pty. Limited [2006] NSWCA 212

The appeal was allowed because, under the former regime, the application was at least partly for development permissible with consent on rural-zoned land and capable of being State significant development; s.76A(8) then treated the other project components, including pipes and sea water intake facilities, as State significant development and made them capable of consent notwithstanding prohibition. Clause 8J(7) validly operated as a transitional provision to allow the Minister to form the relevant opinion by reference to the time of lodgement, when the 3 September 1999 declaration was in force, and to determine the pending application as if the 2005 amendments had not been made.

Jurisdiction
Australia
Judgment Date
31 July 2006
Procedural Posture
Appeal From the Land & Environment Court Concerning Validity of Development Consent / Court of Appeal Judgment
Outcome
Appeal allowed; matter remitted to the Land & Environment Court for further consideration.
Legal Topics
['development Consent' 'state Significant Development' 'aquaculture Development' 'transitional Provisions' 'validity of Regulations' 'consent Authority']
['environmental Law' 'planning Law' 'local Government'] ['development Consent' 'state Significant Development' 'aquaculture Development' 'transitional Provisions' 'validity of Regulations' 'consent Authority']

Case Brief

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Procedural Posture

Appeal From the Land & Environment Court Concerning Validity of Development Consent / Court of Appeal Judgment

Legal Issues

  1. 1 ['Whether the proposed tank-based aquaculture development was State significant development under the regime before the mid-2005 amendments.' 'Whether SEPP 62 and zoning restrictions meant that the whole development was prohibited, or whether s.76A(8) permitted the prohibited parts to be treated as State significant development capable of consent.' 'Whether cl.8J(7) of the Environmental Planning & Assessment Regulation enabled the Minister to determine the pending application despite revocation of the 3 September 1999 declaration and repeal of the former State significant development provisions.' 'Whether cl.8J(7), so interpreted, was a valid transitional regulation.']

Ratio Decidendi

The appeal was allowed because, under the former regime, the application was at least partly for development permissible with consent on rural-zoned land and capable of being State significant development; s.76A(8) then treated the other project components, including pipes and sea water intake facilities, as State significant development and made them capable of consent notwithstanding prohibition. Clause 8J(7) validly operated as a transitional provision to allow the Minister to form the relevant opinion by reference to the time of lodgement, when the 3 September 1999 declaration was in force, and to determine the pending application as if the 2005 amendments had not been made.

Court Disposition

Appeal allowed; matter remitted to the Land & Environment Court for further consideration.

Orders

  • ['Appeal allowed.' "Respondent to pay appellants' costs of the appeal, and to have a certificate under the Suitors' Fund Act if otherwise eligible." 'Matter remitted to the Land & Environment Court for further consideration.' 'Orders below set aside, including costs orders; and the costs of the proceedings below to...