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Judicial review of planning decisions in NSW

29/01/2012

Planning decisions can be reviewed by the Courts where an authority has fallen into jurisdictional error; for example where

  • irrelevant considerations are taken into account,
  • mandatory considerations are overlooked,
  • the decision-making procedure is not followed correctly,
  • a decision is made based on an incorrect understanding of the relevant provisions, or
  • a decision is beyond the power of the decision-maker to make.

It was widely assumed that a Ministerial declaration under the (now repealed) Part 3A of the Environmental Planning and Assessment Act 1979 (NSW) provided a shield against those kinds of challenge.  Such declarations were made where the Minister thought the project was essential for economic, environmental or social reasons.  Section 75T of the EP&A Act provided that such a declaration excluded all merit appeals and other challenges to an approval.

Part 3A has now been repealed, but the provisions remain applicable for transitional Part 3A critical infrastructure projects.  Furthermore, the arrangements remain relevant to planning decisions about critical infrastructure, although the protections are not on exactly the same terms.

A recent decision of the Land and Environment Court has opened a way to attack the declaration of a project as SSI.   An environmental activist challenged the concept plan approvals for new power stations at Bayswater and Mt Piper.   Kirk v WorkCover NSW & Ors , in connection with an OH&S prosecution,  highlighted that the Australian Constitution prevents legislative limitations on the supervisory role of the Supreme Court in determining and enforcing the jurisdictional limits of executive power.  That supervisory role extended to prevent the miscarriage of powers under Part 3A of the EPA as a result of jurisdictional errors.  The Supreme Court  was entitled to consider the activist’s challenge, even though it ultimately found that the Ministerial declaration was justified.

Following this decision, transitional Part 3A projects and critical infrastructure declarations under the new SSI provisions are exposed to a greater risk of judicial review for  jurisdictional error.  It’s now necessary to ensure that SSI application documents submitted to the  Department of Planning will prevent any claim that its report and determination is infected by jurisdictional errors. 

Here is the full text of the decision in Haughton v Minister for Planning and Macquarie Generation; Haughton  v Minister for Planning and TRUenergy Pty Ltd [2011] NSWLEC 217

 

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