Kennedy v Stockland Developments Pty Ltd (No 7) [2012] NSWLEC 257

Kennedy v Stockland Developments Pty Ltd (No 7) [2012] NSWLEC 257

The amended summons was dismissed because Stockland's works for the shared road and temporary pathway were authorised by the Project Approval, the 2007 Environmental Assessment Report, drawing SK09 and construction certificates; the evidence did not establish that the works exceeded those approvals or intruded into the Turpentine Forest; cl B1 of Sch 2 of the Concept Approval was directed to ARV's proposed development and was not a relevant condition with which Stockland had to comply under condition A4; and Pts 4 and 5 of the Environmental Planning and Assessment Act 1979 and the relied-upon SEPP zoning controls did not apply to the approved project by reason of s 75R and cl 6(2) of the...

Jurisdiction
Australia
Judgment Date
20 November 2012
Procedural Posture
Class 4 Judicial Review Proceedings Concerning Alleged Breach of Major Project Approval and Concept Plan Approval Conditions / Principal Judgment on Amended Summons
Outcome
Amended summons dismissed with costs.
Legal Topics
['major Project Approval Under Pt 3 a of the Environmental Planning and Assessment Act 1979' 'construction of Approval Conditions' 'concept Plan Approval' 'development Consent Requirements Under S 76 a of the Environmental Planning and Assessment Act 1979' 'application of Pts 4 and 5 of the Environmental Planning and Assessment Act 1979 to Approved Projects' 'sandon Point Development']
['environmental Planning and Development' 'judicial Review' 'land and Environment' 'aboriginal Cultural Heritage'] ['major Project Approval Under Pt 3 a of the Environmental Planning and Assessment Act 1979' 'construction of Approval Conditions' 'concept Plan Approval' 'development Consent Requirements Under S 76 a of the Environmental Planning and Assessment Act 1979' 'application of Pts 4 and 5 of the Environmental Planning and Assessment Act 1979 to Approved Projects' 'sandon Point Development']

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Procedural Posture

Class 4 Judicial Review Proceedings Concerning Alleged Breach of Major Project Approval and Concept Plan Approval Conditions / Principal Judgment on Amended Summons

Legal Issues

  1. 1 ['Whether Stockland breached condition A3 of the Project Approval by carrying out clearing, excavation, fill, shared roadway and related infrastructure works on Wilkies Walk and ARV land without authorisation.' 'Whether Stockland breached condition A4 of the Project Approval by failing to comply with cl B1 of Sch 2 of the Concept Approval concerning investigations into potential Aboriginal cultural heritage values of a "Women\'s Area".' 'Whether, by reason of any breach of the approvals, Stockland carried out development without consent in breach of s 76A of the Environmental Planning and Assessment Act 1979.' 'Whether Pts 4 and 5 of the Environmental Planning and Assessment Act 1979 or zoning restrictions in the Sandon Point SEPP applied to the approved project works.']

Ratio Decidendi

The amended summons was dismissed because Stockland's works for the shared road and temporary pathway were authorised by the Project Approval, the 2007 Environmental Assessment Report, drawing SK09 and construction certificates; the evidence did not establish that the works exceeded those approvals or intruded into the Turpentine Forest; cl B1 of Sch 2 of the Concept Approval was directed to ARV's proposed development and was not a relevant condition with which Stockland had to comply under condition A4; and Pts 4 and 5 of the Environmental Planning and Assessment Act 1979 and the relied-upon SEPP zoning controls did not apply to the approved project by reason of s 75R and cl 6(2) of the...

Court Disposition

Amended summons dismissed with costs.

Orders

  • ['The amended summons is dismissed.' "The applicant is to pay the respondent's costs of the proceedings, unless within fourteen days either party files with the Court a notice of motion with an appropriate supporting affidavit seeking some alternative costs order." 'The exhibits may be returned.']