Oshlack v Rous Water [2011] NSWLEC 73

Land and Environment Court New South Wales

Medium Neutral Citation: Oshlack v Rous Water [2011] NSWLEC 73 Hearing dates: 14 March 2011 Decision date: 28 April 2011 Jurisdiction: Class 4 Before: Biscoe J Decision: Preliminary questions answered as follows: (a) Was the First Respondent, Rous Water, required to comply with the provisions of ss 111 and 112 of the Environmental Planning and Assessment Act 1979 with respect to the impacts on human health and the environment of adding fluorine to the water supply when determining to approve the construction and operation of the Clunes, Dorroughby, Corndale and Knockrow fluoridation plants? Yes, except that insofar as any of those plants was the subject of the direction of 12 December 2007 to add fluorine to the Richmond Valley Water Supply the First Respondent was required to comply with s 111 but not s 112; (b) Was the Second Respondent, Ballina Shire Council, required to comply with the provisions of ss 111 and 112 of the Environmental Planning and Assessment Act with respect to the impacts on human health and the environment of adding fluorine to the water supply when determining to approve the construction of the Marom Creek Fluoridation plant? Yes. Catchwords: JUDICIAL REVIEW:- whether an activity by a water supply authority pursuant to an approval or direction under the Fluoridation of Public Waters Supplies Act 1957 to add fluorine to the water supply under its control is subject to ss 111 and 112 of the Environmental Planning and Assessment Act 1979. Legislation Cited: Broadcasting and Television Act 1942 (Cth) ss 89, 132 Code of Practice for the Fluoridation of Public Water Supplies Constitution s 109 Dangerous Goods Act 1975 Environmental Planning and Assessment Act 1979 ss 111, 112, 113, 114 Environmental Planning and Assessment Regulation 2000 cl 228 Fluoridation of Public Water Supplies Act 1957 ss 3, 6, 6A, 6B, 11 Fluoridation of Water Supplies Regulation 2007 cll 5, 6, 7, 8 National Parks and Wildlife Act 1974 Occupational Health and Safety Act 2000 Protection of the Environment Operations Act 1997 Roads Act 1993 s 88 Cases Cited: Coalcliff Community Association Inc v Minister for Urban Affairs and Planning [1999] NSWCA 317, 106 LGERA 243 Commercial Radio Coffs Harbour Ltd v Fuller [1986] HCA 42, 161 CLR 47 Ferdinands v Commissioner for Public Employment [2006] HCA 5, 225 CLR 130 Parks and Playgrounds Movement Inc v Newcastle City Council [2010] NSWLEC 231 Prineas v Forestry Commission of NSW (1983) 49 LGRA 402 Category: Separate question Parties: Al Oshlack (Applicant) Rous Water (First Respondent) Ballina Shire Council (Second Respondent) Lismore City Council (Third Respondent) Representation: Mr J Johnson (Applicant) Mr N J Williams SC (Respondents) N/A (Applicant) Blake Dawson (Respondents) File Number(s): 40570 of 2010