The Next Generation (NSW) Pty Ltd v State of New South Wales [2022] NSWLEC 138

Land and Environment Court New South Wales

Medium Neutral Citation: The Next Generation (NSW) Pty Ltd v State of New South Wales [2022] NSWLEC 138 Hearing dates: 18 October 2022 Date of orders: 24 November 2022 Decision date: 24 November 2022 Jurisdiction: Class 4 Before: Preston CJ Decision: The Court orders: (1) The summons is dismissed. (2) The applicant is to pay the costs of the respondent. Catchwords: JUDICIAL REVIEW – regulation – whether in excess of regulation-making power – regulation for or with respect to matters prescribed – whether inconsistent with primary statute or other statute – regulation prohibits certain activity except at certain places and in certain circumstances – whether inconsistent with permissive licensing scheme to grant licence for activity at any premises – regulation creates offence for carrying out activity – whether inconsistent with primary statute permitting activity – regulation requires refusal of licence for activity prohibited by regulation – whether inconsistent with other statute that precludes refusal of activity in certain circumstances – other statute prevails over regulation in event of inconsistency – regulation not invalid. Legislation Cited: Environmental Planning and Assessment Act 1979 (NSW), ss 4.42, 4.50, 5.24 Interpretation Act 1987 (NSW), ss 31, 32 NSW Government, Energy from Waste Infrastructure Plan, September 2021 Protection of the Environment Operations Act 1997 (NSW), ss 43, 48, 53, 55, 56, 63, 120, 122, 144, 287, 323, 387, Sch 1, cl 5 of Sch 2 Protection of the Environment Operations (General) Amendment (Thermal Energy from Waste) Regulation 2022 (NSW) Protection of the Environment Operations (General) Regulation 2022 (NSW), ss 143, 144, 145, Pt 4 of Ch 9 State Environmental Planning Policy (Planning Systems) 2021, cl 2.6, cl 23 of Sch 1 Cases Cited: State of South Australia v Tanner (1989) 166 CLR 161; (1989) 67 LGRA 84 Hamzy v Commissioner of Corrective Services NSW (2022) 107 NSWLR 544; [2022] NSWCA 16 Category: Principal judgment Parties: The Next Generation (NSW) Pty Ltd (Applicant) State of New South Wales (Respondent) Representation: Counsel: Mr I Hemmings SC with Mr M Seymour (Applicant) Mr R Lancaster SC with Mr D Birch (Respondent)