Wednesday, April 1, 2009

GERROA ENVIRONMENT PROTECTION SOCIETY INC V MINISTER FOR PLANNING and CLEARY BROS (BOMBO) PTY LTD

Howard H

Contrary to claims on the Cleary Bros website at www.clearybros.com.au the Land and Environment Court upheld the GEPS appeal against their Part 3A quarry application. See excerpt from LEC appeal judgement below.



THE LAND AND 
ENVIRONMENT COURT
OF NEW SOUTH WALES


PRESTON CJ


2 SEPTEMBER 2008


10801 OF 2007


GERROA ENVIRONMENT PROTECTION SOCIETY INC V MINISTER FOR PLANNING and CLEARY BROS (BOMBO) PTY LTD


JUDGMENT

1 HIS HONOUR: On 16 May 2008, I delivered judgment indicating that approval to the proposed extracting and processing operations ought to be granted, however, the conditions of approval needed to be revised to take account of the findings in the judgment: Gerroa Environment Protection Society Inc v Minister for Planning and Cleary Bros (Bombo) Pty Ltd [2008] NSWLEC 173. Directions were made for revising the conditions.
2 Although agreement was reached between the parties on a number of matters, it was necessary to hold a hearing on the disputed conditions. This hearing occurred first on 13 August 2008 with a further hearing held on 25 August 2008. I gave rulings ex tempore on each dispute condition on each occasion.
3 These rulings necessitated further revision of the conditions of the Landscape and Rehabilitation Management Plan. This further revision of both documents has now been completed. The final documents, being the consolidated conditions of approval dated 25 August 2008 and the Landscape and Rehabilitation Management Plan dated 20 August 2008 prepared by Kevin Mills & Associates, have been accepted by all parties as being in accordance with my judgment on 16 May 2008 and subsequent rulings of 13 and 25 August 2008.
4 I provided a draft of the proposed orders to the parties for correction of facts or other comment. Both Cleary Bros and the Minister for Planning submitted that the proposed first order, namely that the appeal is upheld, may have the potential to convey an incorrect perception of the decision of the Court and they suggested instead ordering that the appeal is dismissed. Cleary Bros also, correctly, pointed out the typographical error in the proposed second order which referred to “development consent” instead of “approval” which is the correct term for authorisations under Part 3A of the Environmental Planning and Assessment Act 1979. Otherwise, the draft orders were accepted. GEPS did not object to the draft orders.
5 In my opinion, it is preferable to refer to the appeal as being upheld than dismissed. It is true that the appeal is a third party, objector appeal against the decision of the Minister for Planning to approve the project and that GEPS’s primary case was that the Court should refuse approval but that the Court determined instead that approval should be granted. However, by the conclusion of the hearing, the project had been modified by Cleary Bros in material respects from that which was approved by the Minister and it would be further modified by the conditions of approval to be imposed by the Court.
6 The project to be approved by the Court on the conditions proposed by the Court, therefore, will be different in material aspects from the project approved by the Minister on the Minister’s conditions. In order to approve this different project, it is necessary for the appeal to be upheld. A dismissal of the appeal would have the effect of reinstating the Minister’s decision – a result which would not accord with the Court’s decision. Accordingly, the appropriate order is that the appeal is upheld. Otherwise, the proposed orders are agreed with the correction in order 2 to refer to approval.
7 I note in Condition 21(b) in Schedule 3 of the conditions there is a reference to “the draft Landscape Rehabilitation Management Plan, dated 20 August 2008 prepared by Kevin Mills & Associates and accepted by the Land and Environment Court as appropriate”. For the avoidance of doubt in the future, I have endorsed on copies of the Landscape Rehabilitation Management Plan dated 20 August 2008 the words “Plan accepted by the Court as appropriate” and signed and dated the Plan.
Orders
8 Accordingly, the Court orders:

1. The appeal is upheld.

2. Approval is granted to application 05/0099 for extraction and processing operations on land comprising Lot A DP 185785 and part of the land in Certificate of Title Vol 5841 Folio 139 subject to the conditions in Annexure A.

3. Exhibits may be returned.
**********

THE LAND AND 
ENVIRONMENT COURT
OF NEW SOUTH WALES


PRESTON CJ 


1 SEPTEMBER 2008


10801 OF 2007


GERROA ENVIRONMENT PROTECTION SOCIETY INC V MINISTER FOR PLANNING and CLEARY BROS (BOMBO) PTY LTD

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