Considering the impacts of coal mining on climate change - Lessons from Gloucester Resources case

Gloucester Resources Limited v Minister for Planning [2019] NSWLEC 7

In this judgment, handed down on 8 February 2019, the Chief Judge of the NSW Land and Environment Court dismissed an appeal by Gloucester Resources Limited against a decision by the Minister for Planning to refuse to grant development consent for its Rocky Hill Coal Project.

In dismissing the appeal, the Court held that the Project would have significant direct and indirect adverse impacts which would outweigh its potential benefits.

One of the adverse impacts considered by the Court related to the potential impacts of the Project on climate change due the emission of greenhouse gases (GHG).

This includes GHG emitted both directly and indirectly by by the Project. The lengthy written judgment handed down by the Court provides clear guidance as to how the emissions of GHG should be evaluated in the broader context of evaluating the overall merits of a proposed development.

Political Donations: an important reminder about disclosure obligations when making planning applications or public submissions

There have been several recent decisions in the Land and Environment Court in which companies have been convicted for failing to disclose political donations and gifts when making relevant planning applications.

This article provides a brief overview of the key issues which need to be considered when determining whether particular political donations need to be disclosed.

Judicial Review - Commencing appeal following expiry of appeal period - Applicable principles

Wingecarribee Shire Council v Uri Turgeman [2018] NSWLEC 146.

In this case, the NSW Land and Environment Court upheld an application by the applicant Council to extend the normal 3 month appeal period for commencing judicial review proceedings imposed under Rule 59.10(1) of the UCPR.

In so doing, the Court exercised the discretion to extend the appeal period conferred on it by Rule 59.10(2). This case provides a useful summary of the key principles that will be considered by a Court when determining how to exercise this discretion.

In so doing, the Court has provided a useful overview of the approach it will take to analysing each of the following 4 preconditions prescribed under s 88K which must be satisfied before an easement will be granted:

Section 88K Easements - A reminder of the applicable principles

ATB Morton Pty Ltd v Community Association DP270447 (No 2) [2018] NSWLEC 87.

In this case, the NSW Land and Environment Court decided to grant an easement in response to an application made under s 88K of the Conveyancing Act 1919.

In so doing, the Court has provided a useful overview of the approach it will take to analysing each of the following 4 preconditions prescribed under s 88K which must be satisfied before an easement will be granted:

  1. the easement must be reasonably necessary for the effective use or development of other land that will have the benefit of the easement;

  2. the use of the land having the benefit of the easement must not be inconsistent with the public interest;

  3. the owner of the land to be burdened by the easement and each other person having an estate or interest in that land ... must be able to be adequately compensated for any loss or other disadvantage that will arise from imposition of the easement; and

  4. all reasonable attempts must have been made by the applicant for the order to obtain the easement or an easement having the same effect but have been unsuccessful.

Desane case - Westconnex - Court halts compulsory acquisition of land

Desane Properties Pty Limited v State of New South Wales [2018] NSWSC 553.

In this case, the NSW Supreme Court upheld a challenge to the validity of a Proposed Acquisition Notice (PAN) issued by RMS to a landholder (Desane) because the PAN:

  1. deviated impermissibly from the approved form;

  2. did not specify the public purpose of the acquisition; and

  3. was issued for a purpose not authorised under the Roads Act 1993.

New Coastal Management Framework for NSW

The coastal management framework for NSW has changed. The Coastal Management Act 2016 has been amended and the Coastal Protection Act 1979 has been repealed.

The development controls and approval pathway for coastal development are now found in a new Coastal Management SEPP with certain consequential changes also having been made to the Infrastructure SEPP.

EP&A Act - Substantial Amendments

On 1 March 2018, the Environmental Planning and Assessment Act 1979 was substantially amended in what has been described by the NSW Government as the "biggest overhaul to the Act in 40 years".

Along with numerous substantive changes, the Act has also been completely renumbered.

To support these changes, the NSW Department of Planning & Environment has produced two essential resources which should be reviewed by anyone wishing to understand the scope and import of the amendments to the Act:

  1. a Guide to the updated Act which highlights the key changes made to each Part of the Act; and
  2. a Sections Guide which lists frequently used sections of the pre-amendment Act alongside their new section numbers in the amended Act.

For further information on these amendments and thepotential implications for your development please contact Marcus Steele, Director, on (02) 8005-1411 or



"Amber Light" decisions in Class 1 Planning Appeals

 Ku-ring-gai Council v Bunnings Properties Pty Ltd (No 2) [2018] NSWLEC 19.

In this case the Court determined an appeal from a decision by a Commissioner to uphold a Class 1 appeal and to grant consent for development at Pymble including, inter alia, the demolition of existing buildings and the construction of a new building for the purposes of hardware and building supplies.

In considering this issue, the Court sets out a useful overview of the scope of the "Amber Light Approach" and the circumstances in which it may be applied in Class 1 Planning Appeals.

SEPP 55 - Application to Planning Proposals & Gateway Determinations

Moorebank Recyclers Pty Ltd v Tanlane Pty Ltd (No 2)  [2017] NSWLEC 186.

In this case, the NSW Land and Environment Court considered the application of Clause 6 of State Environmental Planning Policy No 55 - Remediation of Land (SEPP 55):

  1. to the preparation of a Planning Proposal; and
  2. to the making of a Gateway determination.

The Court found that the Clause 6 of SEPP 55 was not engaged (and so did not need to be complied with) in the making of either decision under challenge.

Is a private road a "building"?

Louisiana Properties Pty Ltd v Hakea Holdings Pty Ltd; Hakea Holdings Pty Ltd v Louisiana Properties Pty Ltd (No 2) [2017] NSWLEC 147.

In this case, the NSW Land and Environment Court considered whether a private road constitutes a "building" for the purposes of the EP&A Act the construction of which requires authorisation under a construction certificate.

Applying the 3 characteristics of "structures" identified by Preston CJ in Royal Motor Yacht Club (Broken Bay) Pty Ltd v Northern Beaches Council [2017] NSWLEC 56, the Court found that the road did constitute a "structure" (and therefore a "building").

Class 1 proceedings - Costs appeal - Where appeal upheld but consent not granted

David Casson t/as Casson Planning & Development Services v Upper Hunter Shire Council (No 2) [2017] NSWLEC 149.

In this case the NSW Land and Environment Court considered how the usual rule applicable in appeals brought under Section 56A of the Land and Environment Court Act 1979, that "costs follow the event", should be applied where the appeal is upheld but the applicant does not achieve any practical or functional success.

Recusal application - Apprehension of bias - Applicable principles

Alexandria Landfill Pty Ltd and Boiling Pty Ltd v Roads and Maritime Services [2017] NSWLEC 148

A reminder of the general approach that will be applied by a Court when determining an application for recusal with some specific observations as to how the relevant principles will be applied by the Land and Environment Court in Class 3 Compensation Appeals.

Tasmanian "Protection from Protestors" legislation - Key parts struck down by High Court - Implied freedom of political communication - Implications for NSW

Brown v Tasmania [2017] HCA 43

On 23 October 2017, a majority of the High Court of Australia ruled that key provisions of the Workplaces (Protection from Protesters) Act 2014 (Tas) (Protesters Act) impermissibly burden the implied freedom of political communication arising under the Constitution.

Moorebank Intermodal Terminal - Objector appeal - Standing of objector to bring appeal

Residents Against Intermodal Development Moorebank Incorporated v Minister for Planning [2017] NSWLEC 115

The NSW Land and Environment Court has dismissed a challenge by a project proponent (Qube,) who is the Second Respondent in the proceedings, to the standing of the Applicant to bring the proceedings.

The proceedings involve an "objector appeal" brought in relation to an SSD consent granted for the Moorebank Intermodal Precinct East – Stage 1 project.

The Applicant/Objector, Residents Against Intermodal Development Moorebank Inc (RAIDM Inc), is an incorporated body. However, at the time it made its objection to the development, it was an unincorporated association known as Residents Against Intermodal Development Moorebank (RAID Moorebank).

In reaching its decision, the Court considered the scope of persons permitted to bring an objection to development under Section 79(5) and 98(1) of the EP&A Act and the effect of Clause 2(1)(b) of Schedule 2 of the Associations Incorporation Act 2009 (which provides that, upon the incorporation of an unincorporated association, its rights and liabilities vest in the incorporated body).

Modification of Part 3A Concept Approval to exclude land - Excluded landowner's consent not required

Platform Project Services Pty Ltd v Minister for Planning [2017] NSWLEC 102    

The NSW Land and Environment Court has confirmed that, where it is proposed to modify a Part 3A project approval to exclude land, it is not necessary to obtain consent from the owner of the excluded land.