Shellharbour City Council v Minister For Planning [2012] NSWLEC 29

Land and Environment Court New South Wales

Medium Neutral Citation: Shellharbour City Council v Minister For Planning [2012] NSWLEC 29 Hearing dates: 25, 26 July 2011 Decision date: 29 February 2012 Jurisdiction: Class 4 Before: Craig J Decision: 1. Summons dismissed. 2. Costs reserved. 3. Should any party seek an order for costs against another party or parties, short written submissions supporting the order sought must be provided to my Associate and to the other parties within 21 days from the date of this order. 4. A party against whom an order for costs is sought must within 14 days from receiving the written submissions referred to in order 3, provide to my Associate and to the other parties, short written submissions in response. 5. A party who has sought costs and received written submissions in accordance with order 4, may within seven days from the date of receiving those submissions, provide to my Associate and the other parties a brief written submission in reply. 6. Exhibits may be returned. Catchwords: ENVIRONMENT AND PLANNING: judicial review - concept plan approval under s 75O of the Environmental Planning and Assessment Act 1979 - power constrained by cl 8N of the Environmental Planning and Assessment Regulation 2000 - constraint imposed by reference to land identified in a planning instrument as being of "high biodiversity significance" - definition in State Environmental Planning Policy (Major Projects) 2005 - principles of interpretation - necessity for certainty by identification of land in an environmental planning instrument ― land identified as an "area of high conservation value" in Shellharbour Rural Local Environmental Plan 2004 - land so identified not synonymous with land being "of high biodiversity significance" - concept plan approval not constrained by cl 8N Legislation Cited: Civil Procedure Act 2005, s 98 Environmental Planning and Assessment Act 1979, Pt 3A, s 71I(2)(a), 75O, 75R Environmental Planning and Assessment Regulation 2000, cl 8N(1) Evidence Act 1995, s 136 Fisheries Management Act 1994, s 194(1) Interpretation Act 1987, s 34 Protection of the Environment Administration Act 1991, s 6(2) Shellharbour Rural Local Environmental Plan 2004, cl 36 State Environmental Planning Policy (Major Projects) 2005, Sch 3, cl 3, cl 7 State Environmental Planning Policy No 14 - Coastal Wetlands Threatened Species Conservation Act 1995, s 47 Uniform Civil Procedure Rules 2005, r 42.1 Cases Cited: Cooper Brookes (Wollongong) Pty Ltd v The Commissioner of Taxation [1981] HCA 26; (1981) 147 CLR 297 Harrison v Melhem [2008] NSWCA 67; (2008) 72 NSWLR 380 Shellharbour City Council v Minister for Planning [2011] NSWCA 195 Wilson v State Rail Authority of New South Wales [2010] NSWCA 198 Category: Principal judgment Parties: Shellharbour City Council (Applicant) Minister For Planning (First Respondent) Delfin Lend Lease Limited (Second Respondent) Representation: Mr T Robertson SC with Mr J E Lazarus (Applicant) Ms K Richardson with Mr A Shearer (First Respondent) Mr N J Williams SC with Ms A M Mitchelmore (Second Respondent) Sparke Helmore Lawyers (Applicant) Department of Planning, Legal Branch (First Respondent) Allens Arthur Robinson Lawyers (Second Respondent) File Number(s): 40183 of 2011