Moorebank Recyclers Pty Ltd v Tanlane Pty Ltd [2018] NSWCA 304

Moorebank Recyclers Pty Ltd v Tanlane Pty Ltd [2018] NSWCA 304

Clause 6 of SEPP 55 is a mandatory requirement at the planning proposal stage under the Environmental Planning and Assessment Act 1979. The Council failed to comply with this clause when preparing the planning proposal and forwarding it for gateway determination. Non-compliance invalidated the Council resolutions and the gateway determination, as each step in the statutory process must be legally valid for the subsequent step to be lawful.

Jurisdiction
Australia
Judgment Date
14 December 2018
Procedural Posture
Appeal / Court of Appeal Decision
Outcome
Appeal allowed
Legal Topics
['local Environmental Plans' 'contaminated Land' 'judicial Review' 'statutory Construction' 'mandatory Statutory Preconditions']
['environmental Law' 'administrative Law' 'planning Law'] ['local Environmental Plans' 'contaminated Land' 'judicial Review' 'statutory Construction' 'mandatory Statutory Preconditions']

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Procedural Posture

Appeal / Court of Appeal Decision

Legal Issues

  1. 1 ['Whether the Council resolutions and gateway determination were amenable to judicial review;' 'Whether clause 6 of State Environmental Planning Policy No 55 – Remediation of Land (SEPP 55) imposed mandatory obligations at the planning proposal stage;' 'Whether the Council and the Commission complied with clause 6 of SEPP 55;' 'Whether non-compliance with SEPP 55 invalidated the Council resolutions and the gateway determination;']

Ratio Decidendi

Clause 6 of SEPP 55 is a mandatory requirement at the planning proposal stage under the Environmental Planning and Assessment Act 1979. The Council failed to comply with this clause when preparing the planning proposal and forwarding it for gateway determination. Non-compliance invalidated the Council resolutions and the gateway determination, as each step in the statutory process must be legally valid for the subsequent step to be lawful.

Court Disposition

Appeal allowed

Orders

  • ['Allow the appeal from the judgment and orders in the Land and Environment Court dated 21 December 2017.' 'Set aside orders (1) and (2) made in the Land and Environment Court on 21 December 2017.' 'Declare that the planning proposal accepted by Liverpool City Council on 31 August 2016 was not a valid planning...