SEPP 55 - Application to Planning Proposals & Gateway Determinations

Moorebank Recyclers Pty Ltd v Tanlane Pty Ltd (No 2)  [2017] NSWLEC 186.

In this case, the NSW Land and Environment Court considered the application of Clause 6 of State Environmental Planning Policy No 55 - Remediation of Land (SEPP 55):

  1. to the preparation of a Planning Proposal; and
  2. to the making of a Gateway determination.

The Court found that the Clause 6 of SEPP 55 was not engaged (and so did not need to be complied with) in the making of either decision under challenge.

Is a private road a "building"?

Louisiana Properties Pty Ltd v Hakea Holdings Pty Ltd; Hakea Holdings Pty Ltd v Louisiana Properties Pty Ltd (No 2) [2017] NSWLEC 147.

In this case, the NSW Land and Environment Court considered whether a private road constitutes a "building" for the purposes of the EP&A Act the construction of which requires authorisation under a construction certificate.

Applying the 3 characteristics of "structures" identified by Preston CJ in Royal Motor Yacht Club (Broken Bay) Pty Ltd v Northern Beaches Council [2017] NSWLEC 56, the Court found that the road did constitute a "structure" (and therefore a "building").

Class 1 proceedings - Costs appeal - Where appeal upheld but consent not granted

David Casson t/as Casson Planning & Development Services v Upper Hunter Shire Council (No 2) [2017] NSWLEC 149.

In this case the NSW Land and Environment Court considered how the usual rule applicable in appeals brought under Section 56A of the Land and Environment Court Act 1979, that "costs follow the event", should be applied where the appeal is upheld but the applicant does not achieve any practical or functional success.

Recusal application - Apprehension of bias - Applicable principles

Alexandria Landfill Pty Ltd and Boiling Pty Ltd v Roads and Maritime Services [2017] NSWLEC 148

A reminder of the general approach that will be applied by a Court when determining an application for recusal with some specific observations as to how the relevant principles will be applied by the Land and Environment Court in Class 3 Compensation Appeals.

Tasmanian "Protection from Protestors" legislation - Key parts struck down by High Court - Implied freedom of political communication - Implications for NSW

Brown v Tasmania [2017] HCA 43

On 23 October 2017, a majority of the High Court of Australia ruled that key provisions of the Workplaces (Protection from Protesters) Act 2014 (Tas) (Protesters Act) impermissibly burden the implied freedom of political communication arising under the Constitution.

Moorebank Intermodal Terminal - Objector appeal - Standing of objector to bring appeal

Residents Against Intermodal Development Moorebank Incorporated v Minister for Planning [2017] NSWLEC 115

The NSW Land and Environment Court has dismissed a challenge by a project proponent (Qube,) who is the Second Respondent in the proceedings, to the standing of the Applicant to bring the proceedings.

The proceedings involve an "objector appeal" brought in relation to an SSD consent granted for the Moorebank Intermodal Precinct East – Stage 1 project.

The Applicant/Objector, Residents Against Intermodal Development Moorebank Inc (RAIDM Inc), is an incorporated body. However, at the time it made its objection to the development, it was an unincorporated association known as Residents Against Intermodal Development Moorebank (RAID Moorebank).

In reaching its decision, the Court considered the scope of persons permitted to bring an objection to development under Section 79(5) and 98(1) of the EP&A Act and the effect of Clause 2(1)(b) of Schedule 2 of the Associations Incorporation Act 2009 (which provides that, upon the incorporation of an unincorporated association, its rights and liabilities vest in the incorporated body).

Modification of Part 3A Concept Approval to exclude land - Excluded landowner's consent not required

Platform Project Services Pty Ltd v Minister for Planning [2017] NSWLEC 102    

The NSW Land and Environment Court has confirmed that, where it is proposed to modify a Part 3A project approval to exclude land, it is not necessary to obtain consent from the owner of the excluded land.

4Nature successfully challenges Centennial Springvale SSD consent

4nature Incorporated v Centennial Springvale Pty Ltd [2017] NSWCA 191  

The Court of Appeal has upheld 4Nature's appeal from a decision of the Land and Environment Court to dismiss its challenge to the SSD consent granted for the continued operation of the Centennial Springvale mine. 

The case turned upon the correct interpretation of the requirement, contained in Clause 10 of the State Environmental Planning Policy (Sydney Drinking Water Catchment) 2011, that the consent authority be satisfied that the development would have a neutral or beneficial effect on water quality.