Kennedy v Stockland Developments Pty Ltd & ors [2012] NSWLEC 168

Kennedy v Stockland Developments Pty Ltd & ors [2012] NSWLEC 168

The temporary pathway and the fill and batter on the ARV land and lot 517 were authorised by the Part 3A major project approval and the relevant construction certificate, so development consent under Part 4 and environmental assessment under Part 5 were not required. The zoning provisions did not apply to the Part 3A approved project. There was also no evidence that Stockland's works harmed any Aboriginal object or other material evidence of Aboriginal habitation, and the works were not within the Sandon Point Aboriginal Place. The applicant's grounds therefore failed.

Jurisdiction
Australia
Judgment Date
25 July 2012
Procedural Posture
Class 4 Civil Enforcement Proceedings / Principal Judgment on Amended Summons
Outcome
The amended summons was dismissed.
Legal Topics
['major Project Approval' 'part 3 a Approved Project' 'development Consent' 'part 5 Environmental Assessment' 'temporary Pathway' 'fill and Batter Works' 'aboriginal Objects and Aboriginal Places']
['environmental and Planning Law' 'aboriginal Cultural Heritage' 'civil Enforcement'] ['major Project Approval' 'part 3 a Approved Project' 'development Consent' 'part 5 Environmental Assessment' 'temporary Pathway' 'fill and Batter Works' 'aboriginal Objects and Aboriginal Places']

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Procedural Posture

Class 4 Civil Enforcement Proceedings / Principal Judgment on Amended Summons

Legal Issues

  1. 1 ["Whether Stockland's construction of a temporary pathway and related works on ARV land and lot 517 was authorised by the major project approval and construction certificates." 'Whether the works required development consent under Part 4 of the Environmental Planning and Assessment Act 1979 or environmental assessment under Part 5 of that Act.' 'Whether zoning provisions for land zoned E2 under State Environmental Planning Policy (Major Development) Amendment (Sandon Point) 2009 made the temporary pathway or fill and batter unlawful.' 'Whether the works caused harm, damage, destruction or desecration to Aboriginal objects or Aboriginal places contrary to s 86 of the National Parks and Wildlife Act 1974.']

Ratio Decidendi

The temporary pathway and the fill and batter on the ARV land and lot 517 were authorised by the Part 3A major project approval and the relevant construction certificate, so development consent under Part 4 and environmental assessment under Part 5 were not required. The zoning provisions did not apply to the Part 3A approved project. There was also no evidence that Stockland's works harmed any Aboriginal object or other material evidence of Aboriginal habitation, and the works were not within the Sandon Point Aboriginal Place. The applicant's grounds therefore failed.

Court Disposition

The amended summons was dismissed.

Orders

  • ['The amended summons is dismissed.' 'Costs are reserved.' 'The exhibits may be returned.']