In brief - In this article, we look at a number of court decisions involving the merit review of planning decisions of consent authorities, criminal enforcement decisions, compulsory acquisitions and an Aboriginal land rights claim. The year also saw a Full Federal Court decision, Minister for the Environment v Sharma [2022] FCAFC 35, involving second wave climate change litigation. We also outline some of the practical developments during 2022.
Part 1: Merit appeal issues
1. Modification applications
There has been a continuation of case law on the modification power.
In Hunter Development Brokerage Pty Limited trading as HDB Town Planning and Design v Singleton Council [2022] NSWLEC 64, the applicant appealed the deemed refusal of its modification application made pursuant to section 4.56 of the Environmental Planning and Assessment Act 1979 (NSW) (EP&A Act) in which it sought to modify an existing consent to permit biomass to be utilised as a fuel source in an existing power plant. The key question before the Land and Environment Court (LEC) was whether the proposed development was substantially the same as the development for which the consent was originally granted.
In dismissing the appeal, the Court reiterated well known case law setting out the relevant test set by the statutory language. The Court explained that the exercise of determining whether proposed development is substantially the same as the development for which the consent was originally granted:
cannot be undertaken in a numeric “tick a box” approach. The significance of a particular feature or set of features may alone or in combination be so significant that the alteration is such that an essential or material component of the development is so altered that it can no longer be said to be substantially the same development – this determination will be a matter of fact and degree depending upon the facts and circumstances in each particular case.
The test was also considered by the New South Wales Court of Appeal (CoA) in Feldkirchen Pty Ltd v Development Implementation Pty Ltd [2022] NSWCA 227, where the CoA considered whether Wingecarribee Shire Council (as the consent authority) failed to consider the reasons given by that Council for the grant of an original consent when determining an application to modify that consent as required by section 4.55(3) of the EP&A Act. The CoA found that the Council did not give any reasons when it originally granted the consent. Therefore, the Council could not be in breach of the requirement in section 4.55(3) to take into consideration the reasons given by the consent authority for the grant of the consent that is sought to be modified.
The CoA also considered whether the Council failed to form the requisite opinion of satisfaction that the development to which the consent as modified relates is substantially the same development as the development for which consent was granted: section 4.55(2)(a) of the EP&A Act. The Court found that while "explicit reference was not made in the modification assessment report considered by the Council or in the debate at the Council meeting to the terms of the precondition in section 4.55(2)(a) of the EP&A Act, there were other indicators that the Council did address the question posed by the precondition in section 4.55(2)(a)". The Court noted that power to modify a consent and the precondition to the exercise of that power (i.e. the substantially the same development test) "are long established and commonly invoked by consent authorities" and that "an inference would not readily be drawn that the Council was not aware either of the precondition in section 4.55(2)(a) or the need to fulfill the precondition before the Council could exercise the power under section 4.55(2) to approve the application to modify the consent." (emphasis added) The Court concluded that "so long as the Council did address the substance of the question raised by section 4.55(2)(a), it did not have to refer to the precise terms of section 4.55(2)(a) or the ways in which courts have suggested that the question raised by section 4.55(2)(a) might be addressed."
2. Development standards
There was also a continuation of the case law on development standards in 2022.
In Canterbury Bankstown Council v Dib [2022] NSWLEC 79, Canterbury Bankstown Council unsuccessfully appealed under section 56A(1) of the Land and Environment Court Act 1979 (NSW) against the decision of Commissioner Pullinger in Class 1 proceedings. Commissioner Pullinger upheld Dib's appeal to construct a 20-room boarding house in Punchbowl on land zoned R2 Low Density Residential under the Bankstown Local Environmental Plan 2015 (BLEP). The proposed development was also regulated by clause 30AA of the State Environmental Planning Policy (Affordable Rental Housing) 2009 (NSW) (SEPP (ARH)), which precluded a consent authority from granting consent to boarding houses in the R2 zone unless satisfied that it had no more than 12 rooms.
There were two grounds of appeal. Firstly, that Commissioner Pullinger had erred in finding that clause 30AA of the SEPP (ARH) was a development standard for the purposes of section 1.4(1) of the EP&A Act (where the term is defined), and secondly, that Commissioner Pullinger had erred by granting consent to the development application without having formed the opinion of satisfaction specified in clause 30AA that a boarding house must not have more than 12-rooms.
The Chief Judge of the LEC delivered the judgment and rejected the first ground of appeal. The Court found that clause 30AA was a 'development standard'. This was because it regulated the circumstances under which development consent to boarding houses could be granted by specifying a requirement that the number of boarding rooms cannot be more than 1 for the purposes of section 1.4(1) of the EP&A Act. The Court noted that whilst the number of boarding rooms was not expressly identified in the definition of 'development standards', in paragraphs (a) to (n) under section 1.4(1), it would nevertheless influence the size or density of the boarding house so as to fall indirectly within paragraph (c).
With respect to the second ground of appeal, the Court accepted Council's submission that clause 30AA established a precondition which must be established before the Council's power to grant development consent was enlivened, being that Council must first be satisfied that the boarding house does not have more than 12 boarding rooms. However, the Court found that Council's exercise of power under cl 4.6(2) of the BLEP overcame both the development standard and the jurisdictional fact which were one and the same, causing this ground of appeal to ultimately fail.
The upshot of the decision with respect to development standards is that one needs to simply look at the definition of development standard and its two elements:
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Whether the provision is in relation to the carrying out of development, and
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Whether the provision by or under which requirements are specified or standards are fixed in respect of any aspect of that development.
In this case both elements were satisfied. One needs to look beyond any omission of the phrase development standards in the heading or the clause itself and look to the substance as to whether the provision meets the definition of ‘development standards’.
3. Environment principles and intergenerational equity
Stannards Marine Pty Ltd v North Sydney Council [2022] NSWLEC 99 (Stannards Marine)
The importance of preserving natural heritage landscapes for existing and future generations was highlighted in the Chief Judge of the LEC's decision in Stannards Marine, which provides an extensive discussion about the scenic values and heritage of Sydney Harbour.
The LEC explored the principle of intergenerational equity when considering whether development consent should be approved to use a relocatable shed to perform repairs and maintenance on smaller marine vessels situated in the water lease area of Berrys Bay in Sydney Harbour (water lease area); and to install and use a floating dry dock to perform repairs and maintenance on larger marine vessels in the water lease area.
The Court acknowledged that the principle of intergenerational equity is based on three factors, namely requiring each generation to firstly conserve the diversity of resources to ensure that options are available to future generations and secondly, to maintain the quality of the earth so that it is not passed on in a worse condition and thirdly, to give its members equitable rights of access to resources, access of which should be conserved for future generations.
An issue the Court had to address was the fact that the floating dry dock needed to be slewed out of its mooring position closer to the wharf and jetties of the boatyard to load or unload a boat which required to be repaired and maintained.
The Court found that the mooring and use of the floating dry dock in a "confined, natural waterway of Berrys Bay" could not protect or maintain the water lease area as an "outstanding natural asset" and "would alienate an area of the public resource of Sydney Harbour for private good, instead of protecting it for public good". Thus, it would be inconsistent with the views of the State Environmental Planning Policy (Biodiversity and Conservation) 2021 (NSW) and Sydney Harbour Foreshores and Waterways Area Development Control Plan 2005 (NSW), which are "statutory recognitions of the principle of intergenerational equity".
Part 2: Enforcement of planning and environmental law
1. Enforceable undertakings
Enforceable undertakings were introduced in the reforms to the EP&A Act in 2017, and have not yet gained any great momentum given the enforcement activity carried out in NSW.
During 2022, only four enforceable undertakings (EU) were published on the NSW Department of Planning and Environment's (DPE) EU public register. This is, nevertheless, an increase from the previous four years where only one EU was submitted for each respective year.
The EUs published in 2022 included offences relating to damage caused by unauthorised clearing of native vegetation, by means of:
Our experience with EUs has been mixed. Some authorities more readily accept them being used. Others appear to have rigid policy positions against their utilisation, and approach EUs cautiously. However, as the Department of Planning notes on its website they are "a faster and cheaper regulatory option than prosecuting the original breach of the consent … "
2. EPA prosecutions
Environment Protection Authority v Cleanaway Equipment Services Pty Ltd [2022] NSWLEC 40
This case demonstrates how prosecutions are used by the NSW Environmental Protection Authority's (EPA) to deter incidents that can cause environmental harm.
The case involved two water pollution offences and one offence for failing to notify the EPA of a pollution incident.
On 14 May 2020, the solvent Vivasol 2046 leaked from a pipe into the stormwater system located at a storage facility in Queanbeyan NSW (the premises) and flowed into the Molonglo River. The premises was owned by Cleanaway Equipment Services Pty Ltd (Cleanaway). It took Cleanaway more than four hours to report the incident to the EPA.
On 15 May 2020, water containing Vivasol 2046 was pumped from the Molonglo River into a truck and the polluted water was brought back to the premises for disposal. The polluted water was poured into a containment pit on the premises. Some of the contaminated water escaped from the containment pit into the stormwater system, which connects to the stormwater outlet on the Molonglo River.
In its consideration, the Court recognised that water pollution is an offence under section 120 of the Protection of the Environment Operations Act 1997 (NSW) (POEO Act), potentially attracting fines up to $1 million for corporations. Under section 152 of the POEO Act, the maximum penalty for failing to notify the EPA of a pollution incident is $2 million.
The Court considered that both incidents caused significant "environmental harm" to the aquatic habitat downstream of the premises by affecting the chemical composition of the waters in the stormwater system and resulting in a decline in certain species.
Accordingly, the Court imposed fines of $280,000 and $150,000 against Cleanaway for both incidents and $187,500 for failure to notify the incidents to the EPA. Cleanaway was also ordered to pay the EPA's legal and investigation costs in the amount of $305,778.
3. Civil enforcement and jurisdictional facts
In Ross v Lane [2022] NSWCA 235, the CoA held that where the application of a provision within an environmental planning instrument to a proposed development depends on the formation of an opinion or state of satisfaction, it is the consent authority, rather than the Court which conclusively determines whether the provision is engaged. Such decisions by consent authorities are challengeable only via judicial review, and not merits review.
In the case, the Respondent originally obtained development consent from the Council of the City of Sydney for modifications and extensions to his apartment on the top floor of a building, including the construction of an additional storey. However, the construction of this additional storey substantially affected the Appellant's views, as he resided in the neighbouring apartment. The Appellant then applied to the LEC for a declaration that the development consent was invalid, contending that the development application was governed by the State Environmental Planning Policy No 65 - Design Quality of Residential Apartment Development (SEPP 65) and that Council failed to refer the development application to a design review panel for assessment before granting consent, contrary to clause 28(1) of SEPP 65. In making the original decision to approve of the development application, the Council found that SEPP 65 was not applicable, since it was not satisfied under clause 4(1)(a)(ii) that the proposed development consisted of a "substantial redevelopment" or "substantial refurbishment of an existing building".
At first instance in the LEC, Moore J dismissed the appeal by finding that the proposed development did not constitute either a substantial redevelopment nor a substantial refurbishment of an existing building.
There were two grounds of appeal. Firstly, whether a determination that clause 4(1)(a)(ii) of SEPP 65 was satisfied was a matter for the Court or the consent authority to authoritatively determine. Secondly, if the determination of whether clause 4(1)(a)(ii) was satisfied was for the Court to authoritatively determine, whether the primary judge had erred by concluding that the proposed development was not a 'substantial redevelopment' or 'refurbishment' of an existing building.
The CoA dismissed the appeal. In relation to the first ground, Basten AJA (with Macfarlan JA agreeing) found that as a matter of construing the statutory language of section 4.15 of the EP&A Act, the application of environmental planning instruments such as SEPP 65 in a particular case where development was permissible with consent was a matter of consideration by the consent authority in the first instance, subject to judicial review and did not require determination by the Court. His Honour emphasised that there was nothing in the language of the EP&A Act which stated or necessarily implied that the application of a particular environmental planning instrument was a matter which could only be determined authoritatively by the Court. Instead, the appropriate implication to be drawn from the Act is that the consent authority is both empowered and required to determine which matters are relevant, and how they are engaged, in relation to a particular development.
Basten AJA noted that since the present case concerned development which may be carried out with consent, unlike in Woolworths Ltd v Pallas Newco Pty Ltd (2004) 61 NSWLR 707 which concerned prohibited developments, the provision in question could be more readily described as part of the process of determination by the Council of the development application, rather than a determination that was “extrinsic or preliminary or ancillary to the exercise of the power to grant consent”. Furthermore, the legislature would ordinarily intend for a decision-maker to determine issues requiring evaluative judgment so that any error would be an error within jurisdiction.
Thus, in circumstances where it may be difficult to characterise matters such as under section 4.15 of the EP&A Act, which includes some criteria which are precisely defined and other criteria involving matters of degree, it is unlikely that the legislature intended some to be jurisdictional facts, but not others. Requiring some matters to only be authoritatively decided by a court would also generate inconvenience for applicants, being another reason which militated against it being a jurisdictional criterion.
Beech-Jones JA in his minority judgment provided interesting reasoning contrasting with the above, but in the end reached the same result by holding that the proposed development did not consist of a substantial redevelopment or substantial refurbishment of an existing building.
Part 3: Climate change developments
Concerns over climate change continue to drive legal challenges and policy reform that has implications for NSW planning and environmental law. In 2022 there have been some interesting developments in the NSW and Federal jurisdictions. We provide an example of each below.
1. NSW Environment Protection Agency's 'Draft Climate Change Policy and Action Plan'
In 2021, the LEC ordered the EPA to develop environmental quality objectives, guidelines and policies to ensure environment protection from climate change in the case of Bushfire Survivors for Climate Action Incorporated v Environment Protection Authority [2021] NSWLEC 92.
On 8 September 2022, the EPA released its 'Draft Climate Change Policy and Action Plan' in accordance with the Court's orders. Of particular interest are the following proposed actions:
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Action C4: Develop and implement programs to reduce greenhouse gas emissions from the waste sector, including our emissions target of net zero emissions from organic waste from landfills by 2030
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Action C5: Support the whole-of-government approach to streamlining project approvals in renewable energy zones
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Action C6: Develop and implement tailored behavioural change programs to encourage and enable greenhouse gas emission reduction
The EPA is aiming to adopt the policy and action plan by the end of this year. How the EPA implements this instrument in practice will no doubt be developed in 2023.
2. Minister for the Environment v Sharma [2022] FCAFC 35
In Sharma v Minister for the Environment [2021] FCA 560 (2021 Decision), Bromberg J found there was a novel duty of care to protect children from personal injury resulting from the emission of greenhouse gases (GHG) contributing to climate change when determining whether to grant approval of a controlled action under sections 130 and 133 of the Environment Protection and Biodiversity Conservation Act 1999 (Cth) (EPBC Act).
The Minister appealed in Minister for the Environment v Sharma [2022] FCAFC 35, and the Full Federal Court overturned the 2021 Decision and held unanimously that there was no such duty of care. Despite the unanimous decision, each of the three judges delivered separate judgments with different reasoning. However, the Court also dismissed the Minister's challenge to the factual findings of the primary judge, on the basis that the evidence on climate impacts was not challenged in the Court below and the findings were reasonably open on that evidence.
Part 4: Compulsory acquisitions and Class 3 of the Land and Environment Court
The large number of infrastructure projects in NSW have contributed to new compulsory acquisition issues. In addition, the Class 3 jurisdiction in the LEC has seen some novel issues litigated which we also explore below.
1. General statistics
FY22 saw a large increase in the total number of Valuer-General determinations on compensation (excluding substratum). The total number of determinations in FY22 was 247, up from 88 in FY21 and 128 in FY20 (see the Valuer-General's Annual Report). The largest contributor was the Sydney Metro West project, with 94 determinations.
Based on the data reported in the Valuer-General's Annual Report, work commenced in FY22 on 749 matters following the issue of a proposed acquisition notice (PAN). This means that 33% of matters proceeded to determination. In FY21, this figure was 568 (meaning that 15.5% proceeded to determination). The trend in this data is that a lower percentage of matters in the last year are being resolved by agreement with the acquiring authority.
The statistics also record the Valuer-General is in many cases not meeting the 45 day statutory timeframe in the Land Acquisition (Just Terms Compensation) Act 1991 (NSW) (Just Terms Act) for determinations. In FY22, the average determination time was 189 days. This is an increase to FY21 (81 days) and FY20 (171 days).
With a new Valuer-General to take over the office, it will be interesting to see whether the delays in determinations will be brought back into conformity with the timeframes set out in the Just Terms Act.
We expect 2023 will see the implications from the recent CoA decisions (Roads and Maritime Services v United Petroleum Pty Ltd (2019) 99 NSWLR 279, Dial A Dump Industries Pty Ltd v Roads and Maritime Services [2017] NSWCA 73, Eureka and Olde English Tiles) filtering through into new and unique circumstances thrown up by the various resumptions being carried out by local Councils, utility providers such as Sydney Water, and the NSW Government. Whilst many of the contentious acquisitions have involved urban lands, or land on the urban fringe, 2023 will see a large number of rural acquisitions for infrastructure projects such as the HumeLink, which involves 360 km of proposed new transmission lines connecting Wagga Wagga, Bannaby and Maragle, dissecting large tracts of agricultural land.
2. Cultural loss: Native title
Last year, we wrote about the Valuer-General's draft paper titled: 'Review of Forms of Cultural Loss and the Process and Method for Quantifying Compensation for Compulsory Acquisition'. This document was finalised in January 2022 and can be accessed here. Four preliminary determinations were made in FY22 for cultural loss. These are the first of their kind in NSW.
3. The Parliamentary Inquiry
In August 2022, the Legislative Council's Portfolio Committee handed down its Report on the acquisition of land in relation to major transport projects. The Committee was comprised of members of all the major political parties.
Three findings emerged from the Report, all of which were critical of the NSW Government.
Ten recommendations were made by the Committee. The NSW Government provided a response in November 2022 supporting these recommendations outright or in principle. How that acceptance bears out in practice without amendments to the legislation remains to be seen.
4. Acquisition of leasehold interests and business claims
2022 saw two important cases handed down by the CoA in the area of leasehold interests and business claims, namely, Transport for NSW v Eureka Operations Pty Ltd [2022] NSWCA 56 (Eureka) and Olde English Tiles Australia Pty Ltd v Transport for New South Wales [2022] NSWCA 108 (Olde English Tiles).
These cases continue the trend practitioners have observed over the last five years, which has seen a more restrictive assessment of claims involving businesses with leases. The most important takeaway is that based on Olde English Tiles, no market value means no compensable interest. The dispossessed company has sought special leave from the High Court, which will be an interesting decision to watch in 2023. We will be writing about those two cases in more detail early in the new year.
5. Substratum acquisitions
Another important judgment which demonstrates mechanisms for the assessment of compensation over substratum interests is the decision of Moore J in Expandamesh Pty Ltd v Sydney Metro (No 3) [2022] NSWLEC 137.
Expandamesh Pty Ltd (the Company) was the owner of property at Waterloo. The substratum of the site was acquired by Sydney Metro for railway tunnels associated with the Sydney Metro City and Southwest Project in October 2017. The Valuer-General had determined compensation to be $nil.
The Company sought compensation on two bases. The first was the value of the substratum that had been taken from the company in the amount of $20,000. The second was the reduction in value of the future development of the site, because of the additional restrictions that would apply given the railway tunnels below (some 19 metres below). The company contended that the redevelopment of the site would incur additional development costs, and the value of that impact was $405,000. The total claim for compensation was $425,000.
Similar to section 62 of the Just Terms Act, clause 2 Schedule 6B of the Transport Administration Act 1988 (NSW) sets out certain restrictions on potential claims for compensation in a substratum acquisition. In essence, that provision limits the award of compensation to situations where the surface of the overlying soil is disturbed, or the support of that surface is destroyed or injuriously affected.
The issues for determination by the Court were:
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Whether the construction of the railway tunnels had impacted the site in a fashion that satisfied clause 2 Schedule 6B of the Transport Administration Act 1988 (NSW)?
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If so, what compensation should be paid to the Company?
In relation to the first issue, the Court found that on the balance of probabilities, there had been a disturbance of the surface of the site of at least 1.5 millimetres, and that this was sufficient to trigger the ability of the Company to make a claim for compensation.
The resolution of the second issue was more complicated. Ultimately, the Court only awarded the Company compensation for market value of the substratum in the amount of $20,000, plus the Company's legal costs pursuant to section 59(1)(a) of the Just Terms Act.
The Court's findings on the town planning evidence created difficulties for the Company's claim. The Court found that that the increase in development potential for the site was to be regarded as arising solely as a consequence of the public purpose. This finding meant that the Court needed to address the requirements of section 55(f) of the Just Terms Act and consider the valuation question of whether or not there had been an increase in the value of the residue land as a consequence of the public purpose.
Whilst the Court found that the hypothetical prudent purchaser would reduce the maximum amount offered to acquire the site by $140,000 to allow for the required future geotechnical monitoring (note that this lower than the $405,000 claimed by the Company) based on Sydney Metro's evidence, the Court found that a 10% premium would be paid by the hypothetical purchaser to reflect the value of the future development potential for the site.
The consequence of this was that the 10% value uplift associated with the public purpose (in the order of $1 million) exceeded the determined allowance for the future costs associated with the required geotechnical monitoring to permit redevelopment of the site.
The Expandamesh decision demonstrates a rare example of compensation being awarded for substratum acquisitions. To do this, evidence is required to show that statutory limitations have been overcome. The threshold issue is to demonstrate that the surface of the overlying soil is disturbed, or the support of that surface is destroyed or injuriously affected.
The decision also shows the difficulties landowners can face when affected by a partial acquisition, in circumstances where the residue land has experienced town planning changes associated with the infrastructure project behind the acquisition.
6. Joinder applications in Class 3 of the LEC
Tahmoor Coal Pty Ltd v Visser [2022] NSWCA 35 (Tahmoor Coal)
Third party motions to be joined to proceedings have been frequent this year in theLEC, but one of the more unusual cases involved a joinder application by Tahmoor Coal. The company sought to join Class 3 proceedings regarding a claim arising from subsidence caused by Tahmoor Coal's coal mining operations near Picton. Whilst DCS were named as the respondent, Tahmoor Coal were not.
The question before the Court was whether the primary judge erred in not joining the Appellant as party.
The grounds for appeal were firstly whether leave to appeal should be granted given the appeal related to an interlocutory decision in the LEC not to join the company. The second ground was whether the primary judged erred in not joining the Appellant as a party.
On the first ground, the Court found leave should be granted as the person who would be required to pay compensation was not a party to the proceeding and could not be considered bound by the judgment. The Court found this was a substantial injustice.
In relation to the second ground, the Court relied upon rules 6.24(1) and 6.27 of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR) regarding joinder. It further applied the settled principle in Ross v Lane Cove Council (2014) 86 NSWLR 34 that:
a person who is directly affected by the orders sought in a proceeding is a necessary party, and that the obligation to join that person rests upon the plaintiff or applicant or person applying for those orders.
The Court held that "the nature of the applicant’s interest in this case is not equivocal or uncertain" and the "judgment of the Court can create a new legal liability on the part of the company", ultimately finding that the Company should have been joined to the proceedings.
7. Aboriginal Land Claims
In October and November 2022, there were two claims under the Aboriginal Land Rights Act 1983 (NSW) (ALR Act) heard in the LEC: New South Wales Aboriginal Land Council v Minister Administering the Crown Land Management Act – Waverton Bowling Club [2022] NSWLEC 130; and Worimi Local Aboriginal Land Council v Minister Administering the Crown Land Management Act 2016 [2022] NSWLEC 126.
The first appeal succeeded, and the second was refused.
We deal below with the appeal that was upheld.
New South Wales Aboriginal Land Council v Minister Administering the Crown Land Management Act – Waverton Bowling Club [2022] NSWLEC 130 (NSW Aboriginal Land Council)
In NSW Aboriginal Land Council, the LEC ordered for the land owned by the former Waverton Bowling Club (the Land) to be transferred to the Metropolitan Local Aboriginal Land Council in early 2023.
During 2013 to 2019, North Sydney Club (the Club) had a licence to operate a bowling club on the Land. However, this licence was revoked upon the Club's liquidation.
During 2019 and 2020, North Sydney Council had three licences to access and perform site risk assessments and reviews of the Waverton Bowling Club's Land.
On 30 April 2020 and 6 November 2020, the New South Wales Aboriginal Land Council lodged two Aboriginal Land Claims for the Land (the Claims). The Claims were lodged under the ALR Act.
The Crown Lands Minister then refused the Claims on the basis that the Land was not claimable Crown land.
Following this decision, the NSW Aboriginal Land Council appealed to the LEC.
An issue before the Court was whether the Land was ‘claimable Crown land’ within the meaning of section 36(1) of the ALR Act. It also had to decide whether the Land was “not lawfully used or occupied” under section 36(1)(b), or “was not needed, nor likely to be needed, for an essential public purpose” under section 36(1)(c).
The Minister Administering the Crown Land Management Act 2016 (NSW) argued that section 36(1) of the ALR Act was satisfied as Council had used and occupied the Land under the licences and had performed general maintenance duties of the land. However, the Court rejected this, noting that the licences granted during 2019 and 2020 related to site investigation, and maintenance works were completed before the Claims were made.
The Minister also unsuccessfully argued that the Land was likely needed for open space and public recreation, which was an essential public purpose for the purposes of section 36(1)(c) of the ALR Act. The Court found that although the Council did intend for the Land to be used for open space, it could not be satisfied that this could occur based on the evidence which indicated that the State Government was only in the preliminary stages of considering appropriate uses for the Land.
Ultimately, the Court was not satisfied that either sections 36(1)(b) or 36(1)(c) were met, meaning that the Land was deemed claimable Crown land under section 36(1) of the ALR Act and needed to be transferred to the Metropolitan Aboriginal Land Council.
Expect new general legal developments in planning and environmental laws in 2023
Based on the comments of Chief Justice Preston at the 2022 LEC Anniversary Conference earlier this year, caseloads across all classes of jurisdiction in the LEC have increased, and are not expected to change. As a result, those operating under NSW planning and environmental laws can expect new legal developments of general importance during 2023 as jurisprudence expands to new and unique issues in the growth of NSW, which will need to be factored into decision making.