Huntlee Pty Ltd v Sweetwater Action Group Inc; Minister for Planning and Infrastructure v Sweetwater Action Group Inc [2011] NSWCA 378

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Huntlee Pty Ltd v Sweetwater Action Group Inc; Minister for Planning and Infrastructure v Sweetwater Action Group Inc [2011] NSWCA 378 Hearing dates: 4 November 2011 Decision date: 08 December 2011 Before: Beazley JA at 1 Sackville AJA at 2 Tobias AJA at 145 Decision: 1) Allow the appeals in each of CA 247958 of 2011 and CA 251741 of 2011. 2) Set aside Orders 1, 2 and 3 made by the primary Judge in Proceedings 40245 of 2011 in the Land and Environment Court (" Proceedings "). 3) In lieu thereof, make orders in the Proceedings dismissing the summons filed by Sweetwater Action Group Inc (" Sweetwater "), on 21 March 2011. 4) Sweetwater to pay the costs of the Minister for Planning and Infrastructure (" Minister ") and of Huntlee Pty Ltd ("Huntlee") of the Proceedings in the Land and Environment Court. 5) Sweetwater to pay the costs of the Minister of the appeal in CA 251741 of 2011. 6) Sweetwater to pay the costs of Huntlee of the appeal in CA 247958 of 2011. 7) Sweetwater have a certificate under the Suitors Fund Act 1951 with respect to the costs of the appeals referred to in orders 5 and 6, if otherwise qualified. [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court146s computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.] Catchwords: ENVIRONMENT AND PLANNING - Land and Environment Court upholds challenge to Minister's decision to recommend amendments to State Environmental Planning Policy ("SEPP") and to validity of SEPP - whether Minister's recommendation decision failed to comply with the requirements of an existing SEPP - whether the Minister took into account an irrelevant consideration, namely a voluntary planning agreement purportedly made in conformity with s 93F of the Environmental Planning and Assessment Act 1979 - whether voluntary agreement provided for suitable means of enforcement of a development contribution, as required by s 93F(3)(g) - whether a suitable means of enforcement is a jurisdictional fact - whether non-compliance with an existing SEPP would render the Minister's recommendation decision invalid - whether status of recommendation decision affects validity of the amending SEPP - whether a Ministerial recommendation is a precondition to the exercise of the statutory power to make a SEPP