Case Note

Environmental Offences - Court makes orders under s 10(1)(a) of the Crimes (Sentencing Procedure) Act 1999

On 29 September 2023 the Land and Environment Court handed down its decision in Natural Resources Access Regulator v Kimber; Natural Resources Access Regulator v Kimber [2023] NSWLEC 101.

In this case the Court considered what sentences ought to be imposed upon two individuals who each pleaded guilty to offences under section 60B of the Water Management Act 2000 (WM Act).

For one of the first times ever in a case involving offences under the WM Act, the Court ordered that the charges against each defendant be dismissed under section 10(1)(a) of the Crimes (Sentencing Procedure) Act 1999 (CSP Act) without proceeding to conviction.

When will the Land and Environment Court order a prosecutor to pay the costs of a successful appellant?

What has happened?

A recent decision in the Land and Environment Court (Hossein Yamini v The Council of the City of Sydney (No. 2) [2020] NSWLEC 120) provides useful guidance on when the Court will order a prosecutor to pay the costs of a successful appellant against a conviction under the POEO Act.

Compensation for Extinguishment of Native Title Rights

On 13 March 2019, the High Court of Australia handed down its decision in Northern Territory v Mr A. Griffiths (deceased) and Lorraine Jones on behalf of the Ngaliwurru and Nungali Peoples [2019] HCA 7.

Two key issues considered in the case were (at [2]):

  1. “how the objective economic value of the affected native title rights and interests is to be ascertained”; and

  2. “how the Claim Group's sense of loss of traditional attachment to the land or connection to country is to be reflected in the award of compensation”.

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.

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.

"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).

4Nature successfully challenges Centennial Springvale SSD consent

4nature Incorporated v Centennial Springvale Pty Ltd [2017] NSWCA 191  

The Court of Appeal has upheld 4Nature's appeal from a decision of the Land and Environment Court to dismiss its challenge to the SSD consent granted for the continued operation of the Centennial Springvale mine. 

The case turned upon the correct interpretation of the requirement, contained in Clause 10 of the State Environmental Planning Policy (Sydney Drinking Water Catchment) 2011, that the consent authority be satisfied that the development would have a neutral or beneficial effect on water quality.