Shellharbour City Council v Minister For Planning [2012] NSWLEC 29

Shellharbour City Council v Minister For Planning [2012] NSWLEC 29

The LEP did not identify any part of the Calderwood Site hatched on Exhibit C as land of high biodiversity significance. The expression area of high conservation value, defined by reference to land coloured beige on the Conservation Map, was not synonymous with land identified as being of high biodiversity significance, and cl 36 of the LEP required consideration of biodiversity values but did not identify the land as having high biodiversity significance. The Mills Study did not alter that construction. Accordingly, cl 8N(1) of the Regulation did not prohibit the Minister from granting the Concept Plan Approval, and the summons was dismissed.

Jurisdiction
Australia
Judgment Date
29 February 2012
Procedural Posture
Class 4 Judicial Review Proceedings Challenging Validity of Concept Plan Approval Under Pt 3 a of the Environmental Planning and Assessment Act 1979 / Principal Judgment on Summons
Outcome
Summons dismissed; costs reserved.
Legal Topics
['judicial Review of Concept Plan Approval' 'ministerial Power Under S 75 O of the Environmental Planning and Assessment Act 1979' 'operation of Cl 8 N(1) of the Environmental Planning and Assessment Regulation 2000' 'environmentally Sensitive Area of State Significance' 'high Biodiversity Significance' 'interpretation of Local Environmental Plan Provisions']
['environment and Planning Law' 'administrative Law' 'statutory Interpretation'] ['judicial Review of Concept Plan Approval' 'ministerial Power Under S 75 O of the Environmental Planning and Assessment Act 1979' 'operation of Cl 8 N(1) of the Environmental Planning and Assessment Regulation 2000' 'environmentally Sensitive Area of State Significance' 'high Biodiversity Significance' 'interpretation of Local Environmental Plan Provisions']

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Procedural Posture

Class 4 Judicial Review Proceedings Challenging Validity of Concept Plan Approval Under Pt 3 a of the Environmental Planning and Assessment Act 1979 / Principal Judgment on Summons

Legal Issues

  1. 1 ['Whether cl 8N(1) of the Environmental Planning and Assessment Regulation 2000 precluded the Minister from granting concept plan approval for the Calderwood Project.' 'Whether land coloured beige on the Areas of High Conservation Value Map under the Shellharbour Rural Local Environmental Plan 2004 was identified in an environmental planning instrument as being of high biodiversity significance within paragraph (e) of the definition of environmentally sensitive area of State significance in State Environmental Planning Policy (Major Projects) 2005.' 'Whether the Mills Study could be used to show that areas of high conservation value were in substance areas of high biodiversity significance.']

Ratio Decidendi

The LEP did not identify any part of the Calderwood Site hatched on Exhibit C as land of high biodiversity significance. The expression area of high conservation value, defined by reference to land coloured beige on the Conservation Map, was not synonymous with land identified as being of high biodiversity significance, and cl 36 of the LEP required consideration of biodiversity values but did not identify the land as having high biodiversity significance. The Mills Study did not alter that construction. Accordingly, cl 8N(1) of the Regulation did not prohibit the Minister from granting the Concept Plan Approval, and the summons was dismissed.

Court Disposition

Summons dismissed; costs reserved.

Orders

  • ['Summons dismissed.' 'Costs reserved.' 'Should any party seek an order for costs against another party or parties, short written submissions supporting the order sought must be provided to my Associate and to the other parties within 21 days from the date of this order.' 'A party against whom an order for costs is...