Rocla Pty Limited v Minister for Planning & Another [2006] NSWLEC 279

Land and Environment Court of New South Wales

CITATION : Rocla Pty Limited v Minister for Planning & Another [2006] NSWLEC 279

APPLICANT Rocla Pty Limited

PARTIES : FIRST RESPONDENT Minister for Planning

SECOND RESPONDENT Sutherland Shire Council

FILE NUMBER(S) : 10447 of 2005

CORAM: Talbot J

KEY ISSUES: Practice and Procedure :- application for determination of preliminary question as separate issue.

Environmental Planning and Assessment Act 1979 s 76A(7) LEGISLATION CITED: Land and Environment Court Act 1979 s 39(6) Sydney Regional Environmental Plan No. 17 – Kurnell Peninsula (1989) cl 25

DATES OF HEARING: 01/05/2006, 03/05/2006 (written submissions), 05/05/2006 (written submissions)

DATE OF JUDGMENT: 05/26/2006

APPLICANT Mr M G Craig QC SOLICITORS Blake Dawson Waldron

FIRST RESPONDENT LEGAL REPRESENTATIVES: Mr P R Clay (Barrister) SOLICITORS Department of Planning

SECOND RESPONDENT Mr P W Larkin (Barrister) SOLICITORS Woolf & Associates

JUDGMENT:

THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

Talbot J

26 May 2006

10447 of 2005 Rocla Pty Limited v Minister for Planning & Another

JUDGMENT 1 Talbot J: The first respondent is the Minister for Planning who seeks an order that the Court determine separate issues which arise as preliminary questions of law; the resolution of which is said to be essential at this stage as an answer against the interests of Rocla Pty Limited ("the applicant") would result in a final determination of the proceedings. 2 The proceedings are an appeal against the refusal of a development application for the production of sand products from the subject site with a progressive back fill of the void to create a final landform to allow the release of land suitable for light industrial purposes. The development application was determined by the Minister on 24 April 2005. The subject land is situated on Captain Cook Drive comprising approximately 26 hectares on the Kurnell peninsula. The methods of recovery include dredging and dry extraction. 3 The principle issue raised by the Minister as a preliminary question is whether the effect of cl 25 of Sydney Regional Environmental Plan No. 17 – Kurnell Peninsula (1989) ("SREP 17") precludes the Court from granting consent. Clause 25 provides as follows:-