Help Save Mt Gilead Inc v Mount Gilead Pty Ltd (No 4) [2018] NSWLEC 149

Land and Environment Court New South Wales

Medium Neutral Citation: Help Save Mt Gilead Inc v Mount Gilead Pty Ltd (No 4) [2018] NSWLEC 149 Hearing dates: 19, 20 and 21 June 2018 Date of orders: 20 September 2018 Decision date: 20 September 2018 Jurisdiction: Class 4 Before: Moore J Decision: (1) The proceedings are dismissed; (2) Costs are reserved; and (3) The exhibits are returned. Catchwords: JUDICIAL REVIEW - requests for statements of reasons - document provided by Council not a statement of reasons - document provided by Department not a statement of reasons of the Minister's Delegate - documents rejected JUDICIAL REVIEW - making of amendment of local environmental plan - provision of zoning map with application for gateway determination - complaint no zoning map provided - indicative layout plan provided - held plan provided sufficient detail to satisfy statutory provision - if plan did not do so, failure did not vitiate process for seeking of gateway determination - Ground 1 rejected JUDICIAL REVIEW - allegation of defective air quality report as part of public consultation process - ground seeks impermissible factual review of report's conclusion - report's conclusion not manifestly unreasonable - Ground 2 rejected JUDICIAL REVIEW - failure of Council to consider report lodged concerning desirable curtilage of items listed as local heritage items in LEP - holding out that report would be considered - circumstances of holding out limited - circumstances not satisfied - unnecessary to consider if power to waive requirement for timings of lodgement of submissions - community consultation process did not fail as a consequence of non-consideration of report - Ground 3 rejected JUDICIAL REVIEW - alleged failure to consider likelihood of state heritage listing of expanded curtilage - no basis to believe OEH would have advised expanded curtilage being considered - statutory heritage listing process not commenced prior to making of LEP amendment - expanded curtilage not necessarily in conflict with rezoning - three separate reasons to reject Ground 4 - Ground 4 rejected COSTS - multiple respondents - potential for public interest challenge argument available to Applicant - costs reserved Legislation Cited: Campbelltown Local Environmental Plan 2012 Environmental Planning and Assessment Act 1979 Local Government Act 1993 Heritage Act 1977 Cases Cited: Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1998] 1 KB 223 BGP Properties Pty Limited v Lake Macquarie City Council [2004] NSWLEC 399 Charlton v Moore (No 2) [2009] NSWLEC 47 De Angelis v Pepping [2015] NSWCA 236 Gales Holdings Pty Ltd v Minister for Infrastructure and Planning (2006) 69 NSWLR 156; [2006] NSWCA 388 Help Save Mt Gilead Inc v Mount Gilead Pty Limited [2018] NSWLEC 88 Help Save Mt Gilead Inc v Mount Gilead Pty Limited (No 2) [2018] NSWLEC 147 Help Save Mt Gilead Inc v Mount Gilead Pty Limited (No 3) [2018] NSWLEC 148 Homeworld Ballina Pty Ltd v Ballina Shire Council (2010) 172 LGERA 211; [2010] NSWCA 65 Latoudis v Casey (1990) 170 CLR 534; [1990] HCA 59 Minister for Immigration v Bhardwaj (2002) 209 CLR 597; [2002] HCA 11 Minister for Aboriginal Affairs v Peko Wallsend Ltd (1986) 162 CLR 24; [1986] HCA 40 Moorebank Recyclers Pty Ltd v Tanlane Pty Ltd (No 2) [2017] NSWLEC 186 Oshlack v Richmond River Council (1998) 193 CLR 72; [1998] HCA 11 Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28 Western Australian Planning Commission v Temwood Holdings Pty Limited (2004) 221 CLR 30; (2004) 211 ALR 472; (2004) 79 ALJR 414; [2004] HCA 63 Category: Principal judgment Parties: Help Save Mt Gilead Inc (Applicant) Mount Gilead Pty Limited (First Respondent) Stefan & Anna Dzwonnik (Second Respondents) The Greater Sydney Commission (Third Respondent) The Minister for Planning (Fourth Respondent) Campbelltown City Council (Fifth Respondent) Lendlease Communities (Mt Gilead) Pty Limited (Sixth Respondent) Representation: Counsel: Mr T Robertson SC/Ms J Walker, barrister (Applicant) Ms Z Heger, barrister (First Respondent) Submitting appearance (Second Respondents) Ms I King, barrister (Third and Fourth Respondents) Submitting appearance (Fifth Respondent) Mr N Williams SC/Mr A Shearer, barrister (Sixth Respondent)