Botany Bay City Council v Minister for Planning and Infrastructure & Ors [2015] NSWLEC 12

Land and Environment Court New South Wales

Medium Neutral Citation: Botany Bay City Council v Minister for Planning and Infrastructure & Ors [2015] NSWLEC 12 Hearing dates: 16-18 July 2014 Date of orders: 10 February 2015 Decision date: 10 February 2015 Jurisdiction: Class 4 Before: Beech-Jones AJ Decision: The proceedings be dismissed. The Applicant to pay the Respondents' costs. Catchwords: Part 3A Approval – whether approved project incapable of being carried out because of interference with Council easements – whether in Class 4 proceedings the Court should assess likelihood of Supreme Court ordering the extinguishment of Council easements – whether conditions attached to approval required completion of approved project – whether threatened breach of the Environmental Planning and Assessment Act if approved project not completed- whether Director – General required to consider alleged legal incapacity to complete approved project in providing report under former s 75I- whether delegate of Minister required to consider alleged legal incapacity to complete approved project in considering whether to approve project under former s 75J.

Part 3A Approval – groundwater and drainage – whether delegate of Minister considered environmental assessment requirements made under former s 75F – whether overland flow path analysis required – whether overland flow path analysis provided - statement of compliance with environmental assessment requirements – no requirement under Part 3A to provide – irrelevant to validity of Director General's report or decision to approve project.

Part 3A Approval – condition of approval requiring compliance with "[u]nit size...requirements of Residential Flat Design Code" – proper construction – whether uncertain or imprecise – whether compliance with condition would result in material alteration to approved project – limitations on power to impose conditions under former s 75J(4) – whether alleged misconstruction of Residential Flat Design Code is an error of law.