Neilson v Secretary, Department of Planning & Environment [2023] NSWLEC 32

Land and Environment Court New South Wales

Medium Neutral Citation: Neilson v Secretary, Department of Planning & Environment [2023] NSWLEC 32 Hearing dates: 7, 8, 9, 28 February, 1 March 2023 Date of orders: 23 March 2023 Decision date: 23 March 2023 Jurisdiction: Class 4 Before: Pain J Decision: The Court orders: (1) Further amended summons filed in chambers 3 March 2023 dismissed. (2) The Applicant is to pay the Respondent's costs as agreed or assessed the making of such order to be delayed for three weeks to enable an alternative application in relation to costs to be made. Catchwords: JUDICIAL REVIEW – public duty – no failure of NPWS to comply with duty in plan of management for Mimosa Rocks National Park – statutory construction of plan of management – no failure of duty to maintain two roads identified for public access – no requirement for NPWS to enable access to mean high water mark – summons dismissed CIVIL ENFORCEMENT – no failure of NPWS to comply with duty in plan of management for Mimosa Rocks National Park – statutory construction of plan of management – summons dismissed Legislation Cited: Land and Environment Court Act 1979 (NSW), s 20(2)(b) Protection of the Environment Operations Act 1997 (NSW), 9(1)(a) National Parks and Wildlife Act 1974 (NSW), ss 2A, 81, 193 Cases Cited: Associated Provincial Picture Houses Limited v Wednesbury Corporation [1948] 1 KB 223 AQM18 v Minister for Immigration and Border Protection (2019) 268 FCR 424; [2019] FCAFC 27 BMF16 v Minister for Immigration and Border Protection [2016] FCA 1530 Bushfire Survivors for Climate Action Inc v Environment Protection Authority [2021] NSWLEC 92 CMA19 v Minister for Home Affairs [2020] FCA 736 Collector of Customs v Agfa-Gevaert Ltd (1996) 186 CLR 389 Cooper Brookes (Wollongong) Pty Ltd v Commissioner of Taxation (1981) 147 CLR 297 Roden v Bandora Holdings Pty Limited [2015] NSWLEC 191 Ex parte MacKaness & Avery Pty Ltd; Re Royce (1943) 43 SR (NSW) 239 Grunwick Processing Laboratories Ltd v Advisory, Conciliation and Arbitration Service [1978] AC 655 Karda v Minister for Immigration and Ethnic Affairs [1995] FCA 1132 Koon Wing Lau v Calwell (1949) 80 CLR 533 Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 Oliveira v The Attorney General (Antigua and Barbuda) [2016] UKPC 24 Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28 R v Secretary of State for the Home Department, Ex Parte Phansopkar [1976] QB 606 Re O'Reilly; ex parte Australena Investments Pty Ltd (1983) 58 ALJR 36 Sydney Seaplanes Pty Ltd v Page (2021) 393 ALR 485; [2021] NSWCA 204 SZTAL v Minister for Immigration and Border Protection (2017) 262 CLR 362 Taylor v The Owners – Strata Plan No 11564 (2014) 253 CLR 531 Category: Principal judgment Parties: Ian Stuart Neilson (Applicant) Secretary, Department of Planning and Environment (Respondent) Representation: Counsel: C Ireland with A Jucha (Applicant) J McKelvey (Respondent)