Audits, Jurisdiction, Land Use, Administrative, Declaratory Relief, Injunctive Relief, Environmental Defenders, Criminal, Taxation, Liability
The applicant, Australians for Sustainable Development Inc, seeks judicial review of two decisions of the first respondent, the Minister for Planning, to grant approval to the carrying out of two projects at Barangaroo, adjoining the Sydney central business district, made under s 75J of the Environmental Planning and Assessment Act 1979 ( EPA Act ). After the conclusion of the trial, but before judgment was delivered, the Minister made an order amending the State Environmental Planning Policy No 55 – Remediation of Land (“SEPP 55”) such that the two contested projects were removed from the ambit of cl 17. Clause 17(1)(c) of SEPP 55 mandated that all remediation work must be carried out in accordance with “in the case of a category 1 remediation work – a plan of remediation, as approved by the consent authority, prepared in accordance with the contaminated land planning guidelines”. Issues were:1) but for the Minister’s amendment to SEPP 5:(a) whether cl 17(1)(c) of the SEPP applied to the carrying out of projects approved under Pt 3A of the Environmental Planning and Assessment Act (1979) (“the EPAA”); and (b) whether remedial actions plans failed to comply with cl 17(1)(c) of SEPP 55. (2) whether cl 7 SEPP 55 applies to Pt 3A projects at the approval stage; (3) whether respondents failed to comply with cl 7 of SEPP 55; (4) whether the Minister failed to consider principles of ecologically sustainable development (“ESD”) as part of the public interest; (5) whether the Minister failed to make requisite inquiries or constructively failed to exercise jurisdiction; (6) whether extraction of sandstone was for an impermissible purpose, and thus whether the development was consequently prohibited; and (7) whether, in light of the Minister’s amendment to SEPP 55, the Minister should be ordered to pay costs and if so, on what basis? The Court held: dismissing the application, but ordering the Minister to pay costs: 1) but for the Minister’s amendment to SEPP 55, the applicants would have succeeded on the cl 17(1)(c) issue: at [10] and [183]–[194]; (2) the Minister’s power to grant project approval was subject to the implied limitation not to grant approval for the carrying out of unlawful development: at [214]; (3) cl 7 of SEPP 55 did not apply to projects at the approval stage: at [215]; (4) the applicant did not prove that the Minister failed to consider the substance of ESD principles when approving the two projects: at [249]–[250]; (5) constructive failure to exercise jurisdiction requires the administrative decision-maker to fail to make an obvious finding about a critical fact, the existence of which is easily ascertained. Mere failure to investigate an issue on which the administrative decision-maker could have obtained more information is not sufficient to constitute constructive failure to exercise jurisdiction: at [257]–[259]; (6) the extraction of the sandstone was for a permissible purpose, even if it was for an anticipated project which had not yet been approved: at [296]; and (7) a preliminary determination was made that the Minister’s amendment to SEPP 55 constituted special and unusual circumstances, which warranted an order that the Minister pay costs on an indemnity basis, subject to any later application filed by the Minister: at [307].