North Parramatta Residents’ Action Group Inc v Infrastructure New South Wales (No 2) [2021] NSWCA 146

North Parramatta Residents’ Action Group Inc v Infrastructure New South Wales (No 2) [2021] NSWCA 146

The appeal was dismissed because the EIS substantially complied with the applicable requirements. The Regulation did not require analysis of alternative sites, since the development application concerned development on particular land. Although the primary judge erred in not separately considering compliance with the Secretary's requirements and there was a failure to address a known shortlisted design that retained Willow Grove, that failure was not shown to be a material failure of disclosure or a substantial non-compliance invalidating the EIS or the Minister's consent, particularly where the consent authority could only approve the winning design under the design excellence...

Jurisdiction
Australia
Judgment Date
16 July 2021
Procedural Posture
Environment and Planning Appeal Concerning Validity of Development Consent for State Significant Development / Appeal From Land and Environment Court Class 4 Decision Dismissing Proceedings
Outcome
Appeal dismissed.
Legal Topics
['development Consent' 'state Significant Development' 'environmental Impact Statement' 'feasible Alternatives' "secretary's Environmental Assessment Requirements" 'design Excellence' 'heritage Impact' 'substantial Compliance' 'invalidity']
['environment and Planning Law' 'administrative Law'] ['development Consent' 'state Significant Development' 'environmental Impact Statement' 'feasible Alternatives' "secretary's Environmental Assessment Requirements" 'design Excellence' 'heritage Impact' 'substantial Compliance' 'invalidity']

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Procedural Posture

Environment and Planning Appeal Concerning Validity of Development Consent for State Significant Development / Appeal From Land and Environment Court Class 4 Decision Dismissing Proceedings

Legal Issues

  1. 1 ['Whether Sch 2, cl 7(1)(c) of the Environmental Planning and Assessment Regulation 2000 (NSW) required feasible alternatives to be identified by reference to the objectives of the development as stated in the EIS.' 'Whether the EIS was required to include an analysis of feasible alternative sites for the proposed Powerhouse Parramatta development.' 'Whether the EIS was required to include an analysis of feasible alternative designs that could have retained Willow Grove.' "Whether any non-compliance with the Regulation or the Secretary's environmental assessment requirements rendered the EIS or the Minister's development consent invalid."]

Ratio Decidendi

The appeal was dismissed because the EIS substantially complied with the applicable requirements. The Regulation did not require analysis of alternative sites, since the development application concerned development on particular land. Although the primary judge erred in not separately considering compliance with the Secretary's requirements and there was a failure to address a known shortlisted design that retained Willow Grove, that failure was not shown to be a material failure of disclosure or a substantial non-compliance invalidating the EIS or the Minister's consent, particularly where the consent authority could only approve the winning design under the design excellence...

Court Disposition

Appeal dismissed.

Orders

  • ['Dismiss the appeal from the judgment of the Land and Environment Court.' "Order that the appellant pay the first respondent's costs of the appeal other than its costs of the appellant's notice of motion of 22 June 2021 seeking interlocutory relief." 'Note that the interlocutory injunction granted pending...