Bingman Catchment Landcare Group Incorporated v Bowdens Silver Pty Ltd [2024] NSWCA 205

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Bingman Catchment Landcare Group Incorporated v Bowdens Silver Pty Ltd [2024] NSWCA 205 Hearing dates: 22 July 2024 Decision date: 16 August 2024 Before: White JA at [1]; Adamson JA at [119]; Price AJA at [120] Decision: (1) Appeal allowed. (2) Set aside the orders made by Land and Environment Court on 14 March 2024 and in lieu thereof: (a) declare that the development consent granted by the Second Defendant to the First Defendant on 3 April 2023 in respect of the Bowdens Silver Project is void and of no effect. (b) order that the First Defendant by itself, its servants and agents, be restrained from carrying out any work in reliance on the development consent granted by the Second Defendant to the First Defendant on 3 April 2023. (c) the First Defendant pay the Plaintiff's costs of the proceeding. (3) The First Respondent pay the Appellant's costs of the appeal. Catchwords: ADMINISTRATIVE LAW — Jurisdictional error — Environmental Planning and Assessment Act 1979 (NSW) — where development consent granted for mine that was State significant development under Div 4.7 — where consent authority did not turn its mind to the likely effects of a necessary power transmission line which was not part of the development application in circumstances where it was proposed that it be included in a later application under Pt 5 — where the precise alignment of the power transmission line was described as unknown — whether transmission line was part of a "single proposed development that is State significant development" under s 4.38(4) — whether the likely environmental impacts of the transmission line were a matter for the consent authority or the court — whether likely environmental impacts of the transmission line were required to be considered by the consent authority — transmission line part of "single development", but could be subject to later separate application under Pt 4 — likely impacts of the transmission line were nonetheless required to be considered as likely effects of the mine the subject of the development application — the consent authority failed to exercise its jurisdiction by failing to consider the transmission line in its determination — appeal allowed. Legislation Cited: Environmental Planning and Assessment Act 1979 (NSW), ss 1.4, 1.6, 3.29, 4.1, 4.5, 4.15, 4.38, 5.5, 5.7, 5.14 Land and Environment Court Act 1979 (NSW), ss 25A, 25B, 25C, 58 State Environmental Planning Policy (State and Regional Development) 2011 (NSW) State Environmental Planning Policy (Transport and Infrastructure) 2021 (NSW), ss 2.44, 2.46 Cases Cited: AQC Dartbrook Management Pty Ltd v Minister for Planning and Public Spaces (2021) 105 NSWLR 152; [2021] NSWCA 112 Ballina Shire Council v Palm Lake Works Pty Ltd [2020] NSWLEC 41 El Khouri v Gemaveld Pty Ltd [2023] NSWCA 78; (2023) 256 LGERA 24 Hoxton Park Residents Action Group Inc v Liverpool City Council (2011) 81 NSWLR 638; [2011] NSWCA 349 Hoxton Park Residents Action Group Inc v Liverpool Council (No. 3) [2012] NSWLEC 43; (2012) 190 LGERA 119 Kindimindi Investments Pty Ltd v Lane Cove Council [2007] NSWCA 38; (2007) 150 LGERA 333 Mullaley Gas and Pipeline Accord Inc v Santos NSW (Eastern) Pty Ltd [2021] NSWLEC 110; (2021) 252 LGERA 221 Ross v Lane [2022] NSWCA 235; (2022) 255 LGERA 136 Category: Principal judgment Parties: Bingman Catchment Landcare Group Incorporated (Appellant) Bowdens Silver Pty Ltd (First Respondent) Independent Planning Commission of NSW (Second Respondent) Representation: Counsel: T Prince with E McGinness (Appellant) D McLure SC with T March (First Respondent)