Kennedy v NSW Minister for Planning.

This case opens another chapter in the serie of opposition to a proposed retirement home development at Sandon Point. This case involved a judicial review action brought to the New South Wales Land and Environment Court. The legal issue to determine was whether the NSW Planning Minister had failed to consider mandatory relevant considerations, whether the Minister erred in other respects and whether the Minister’s decision was manifestly unreasonable. The applicant challenged the validity of the major project approval for the Sandon Point development granted subject to conditions on 29 November 2009 by the first respondent to the proponent/second respondent Stockland Developments Pty Ltd under s 75J of the Environmental Planning and Assessment Act 1979. The project at Sandon Point, in coastal plains north of Wollongong comprises a 181 lot subdivision, including a super lot for future residential flat building development, and the construction of a display village and other various necessary infrastructure. Previous litigation opposing the development before the NSW Land and Environment Court and the NSW Court of Appeal (Walker v Minister for Planning) focused on whether the Minister had failed to have regard to principles of Ecologically Sustainable Development through his failure to consider whether the impacts of climate change would lead to an increased flooding risk on the proposed development site. Subsequently, modifications were made to the project application to incorporate additional climate change information. In August 2009 the Director-General of the Department of Planning reported on the environmental assessment requirements (“EARS”) to the Minister pursuant to s 75 of the EPA Act. It was the Director-General’s recommendation that the Minister approve the carrying out of the project and approve the modification to the concept plant. The Department of Planning issued a statement that they were satisfied with the environmental assessment. The Minister later requested that the Planning Assessment Commission (“PAC”) review the reasonableness of the Director-General’s recommendation which is a function of the Commission under s 23D(1)(b)(ii). The PAC recommended that the EARS report was reasonable. On 29 November 2009 the Minister granted approval for the modification, subject to attached conditions and a statement of commitments. The Judge dismissed all four grounds for review including ground 2(c) concerning whether the Minister had failed to consider climate change induced potential flooding impacts. In regard to this ground, he held that the proponent’s environmental assessment now "contained a section on “Flooding Issues” and another section in “Ecologically Sustainable Development"". His Honour further ruled that the Court of Appeal’s judgment in Walker had been taken into account by the Minister, in the Director-General’s EARS report, the PAC report and a Departmental Briefing Note. He quoted the aspects of the reports which referred to climate change in his judgment. His Honour therefore rejected this ground of review.