Sell & Parker Pty Ltd v Minister for Planning and Public Spaces [2021] NSWLEC 1563

Land and Environment Court New South Wales

Medium Neutral Citation: Sell & Parker Pty Ltd v Minister for Planning and Public Spaces [2021] NSWLEC 1563 Hearing dates: 27-28 July 2021; 12 August 2021 Date of orders: 28 September 2021 Decision date: 28 September 2021 Jurisdiction: Class 1 Before: Gray C Decision: The Court orders that: (1) The appeal is upheld. (2) The Court is satisfied with the Final Stockpile Plan Revision 02 dated 28 July 2021, attached to the Amended Class 1 Application, for the purposes of condition B35D of State Significant Development Consent 5041. (3) The exhibits are returned, except for Exhibits D and E. Catchwords: APPEAL – appeal pursuant to s 8.7(2)(a) of EPA Act – condition requiring the satisfaction of Secretary concerning ancillary matter – appeal following the period after which the Secretary of the Department is deemed to not be satisfied – waste metal recycling facility – State significant development – stockpile plans prepared for fire orders following a fire on the site – modification application submitted site plan and stockpile plan – inconsistency between stockpile plan and site plan – condition concerned the submission of a Final Stockpile Plan "to the satisfaction of the Secretary and FRNSW" – interpretation of condition – condition ought not be interpreted in a manner that could render it ultra vires or the approval void – the Court can have regard to the objective circumstances surrounding its imposition – on the facts the condition was imposed to resolve inconsistency – condition satisfied Legislation Cited: Civil Procedure Act 2005 s 56 Environmental Planning and Assessment Act 1979 ss 4.15, 4.17, 4.55, 8.7, 8.14; ss 121B (repealed), 121O (repealed) Environmental Planning and Assessment Regulation 2000 cl 122 Interpretation Act 1987 ss 8, 32 Land and Environment Court Act 1979 s 39 Uniform Civil Procedure Rules 2005 rr 6.24, 31.19 Cases Cited: 1643 Pittwater Road Pty Ltd v Pittwater Council [2004] NSWLEC 685 Jonah Pty Limited v Pittwater Council (2006) 144 LGERA 408; [2006] NSWLEC 99 Jungar Holdings Pty Ltd v Eurobodalla Shire Council (1989) 70 LGRA 79 Kindimindi Investments Pty Ltd v Lane Cove Council (2006) 143 LGERA 277; [2006] NSWCA 23 King v Great Lakes Shire Council (1986) 58 LGRA 366 North Sydney Council v Michael Standley & Associates Pty Ltd (1998) 43 NSWLR 468; [1998] NSWSC 163 Randwick Municipal Council v Pacific-Seven Pty Ltd (1989) 69 LGERA 13 Scott v Wollongong City Council [1992] NSWCA 227 TL & TL Tradings Pty Ltd v City of Parramatta Council [2019] NSWLEC 160 Weal v Bathurst City Council (2000) 111 LGERA 181; [2000] NSWCA 88 Westfield Management Ltd v Perpetual Trustee Company Ltd [2006] NSWCA 245 Texts Cited: Fire and Rescue NSW Guideline – Fire Safety in Waste Facilities (Version 2.02, 27 February 2020) Category: Principal judgment Parties: Sell & Parker Pty Ltd (Applicant) Robert Gordon Stokes trading as Minister for Planning and Public Spaces (First Respondent) Secretary, Department of Planning Industry and Environment (Second Respondent) Fire and Rescue NSW (Third Respondent) Representation: Counsel: J Johnson (Applicant) Submitting Appearance (First Respondent) M O'Brien (Second Respondent) Submitting Appearance (Third Respondent)