Fullerton Cove Residents Action Group Incorporated v Dart Energy Ltd (No 2) [2013] NSWLEC 38

Land and Environment Court New South Wales

Medium Neutral Citation: Fullerton Cove Residents Action Group Incorporated v Dart Energy Ltd (No 2) [2013] NSWLEC 38 Decision date: 28 March 2013 Jurisdiction: Class 4 Before: Pepper J Decision: Amended summons dismissed. Injunction granted by Sheahan J on 5 September 2012 discharged forthwith. Costs reserved. Catchwords: JUDICIAL REVIEW: whether departmental decision approving pilot gas exploration program should be set aside for breaching ss 111 or 112 of the Environmental Planning and Assessment Act 1979 - whether Department failed to take into account a relevant mandatory consideration - whether Department failed to give proper, genuine and realistic consideration to a relevant mandatory matter.

JURISDICTION: whether impugned decision made under Pt 5 of the Environmental Planning and Assessment Act 1979 or the Petroleum (Onshore) Act 1991 - whether the Court has jurisdiction to determine a challenge to an approval made under the Petroleum (Onshore) Act 1991.

STATUTORY CONSTRUCTION: whether s 112 of the Environmental Planning and Assessment Act 1979 gives rise to a jurisdictional fact - meaning of "examine and take into account to the fullest extent possible all matters affecting or likely to affect the environment" in s 111 of the Environmental Planning and Assessment Act 1979 - meaning of "likely to significantly affect the environment" in s 112 of the Environmental Planning and Assessment Act 1979 - proper construction of cl 228 of the Environment Planning and Assessment Regulation 2000.

EVIDENCE: whether expert evidence admissible to prove a breach of s 111 of the Environmental Planning and Assessment Act 1979 - whether expert evidence admissible to prove a breach of s 112 of that Act - whether expert evidence should be excluded or limited on some other basis - use of secondary sources by experts.