Pittking Properties Pty Ltd v Waverley Council [2020] NSWLEC 21

Land and Environment Court New South Wales

Medium Neutral Citation: Pittking Properties Pty Ltd v Waverley Council [2020] NSWLEC 21 Hearing dates: 16 and 17 October 2019 Date of orders: 20 March 2020 Decision date: 20 March 2020 Jurisdiction: Class 4 Before: Moore J Decision: (1) The summons is dismissed; (2) The Applicant is to pay the Respondent's costs as agreed or assessed; and (3) The exhibits are returned. Catchwords: JUDICIAL REVIEW - Council development project -assessment pursuant to Part 5 of the Environmental Planning And Assessment Act 1979 - meaning of requirement that potential environmental impact be assessed "to the fullest extent possible" - phrase means "to the fullest extent reasonably possible" - was the test satisfied by the Council's General Manager's assessment before determining to approve the proposal - merits of General Manager's assessment not to be reviewed - General Manager's assessment satisfied the test - Ground 1 rejected JUDICIAL REVIEW - no environmental impact statement prepared - was environmental impact statement required - was requirement for an environmental impact statement a jurisdictional fact - effect of 2015 legislative changes - if jurisdictional fact, was the Council project "likely to significantly affect the environment" - appropriate to commenced by factual examination - consideration of expert traffic evidence - conclusion that project was not likely to significantly affect the environment - unnecessary to consider legal issues as evidentiary basis for challenge not made out - Ground 2 rejected JUDICIAL REVIEW - Council project for a cycleway - was the route of the proposed cycleway uncertain so as to affect the validity of the General Manager's approval - no uncertainty as to route of cycleway - Ground 3 rejected COSTS - costs ordinarily follow the event in judicial review proceedings - no reason to depart from usual position - Applicant to pay the Respondent's costs as agreed or assessed. Legislation Cited: Electricity Network Assets (Authorised Transactions) Act 2015, Sch 8.12 Environmental Planning and Assessment Act 1979, ss 5.5 – 5.7 and 5.10 Environmental Planning and Assessment Regulation 2000, cl 228 Interpretation Act 1987, s 34(2)(e) and (f) Uniform Civil Procedure Rules 2005, Pt 42 r 1 Cases Cited: Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41; 239 CLR 27 Attorney-General (NSW) v Quinn [1990] HCA 21; (1990) 170 CLR 1 Fullerton Cove Residents Action Group Inc v Dart Energy Ltd (No 2) [2013] NSWLEC 38; (2013) 195 LGERA 229 Goldberg v Waverley Council [2008] NSWLEC 49 Guthega Development Pty Ltd v Minister Administering the National Parks & Wildlife Act 1974 (NSW) (1986) 7 NSWLR 353 Help Save Mt Gilead Inc v Mount Gilead Pty Limited [2018] NSWLEC 88 Latoudis v Casey (1990) 170 CLR 534; [1990] HCA 59 Oshlack v Rous Water [2013] NSWCA 169; (2013) 194 LGERA 39 Pittking Properties Pty Ltd v Waverley Council [2019] NSWLEC 122 Roads and Maritime Services v United Petroleum Pty Ltd [2019] NSWCA 41 Stevens v Kabushiki Kaisha Sony Computer Entertainment [2005] HCA 58; 224 CLR 193 Transport Action Group Against Motorways Inc v Roads and Traffic Authority [1999] NSWCA 196; (1999) 46 NSWLR 598 Texts Cited: Macquarie Dictionary Oxford English Dictionary Category: Principal judgment Parties: Pittking Properties Pty Ltd (Applicant) Waverley Council (Respondent) Representation: Counsel: Mr I Hemmings SC/Ms R McEwen, barrister (Applicant) Mr A Galasso SC/Mr D Robertson, barrister (Respondent)