Huntlee Pty Ltd v Sweetwater Action Group Inc; Minister for Planning and Infrastructure v Sweetwater Action Group Inc

(2011) 185 LGERA 429; [2011] NSWCA 378

NSW Court of Appeal

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Catchwords

1. Environment and Planning
2. › Environmental planning instruments
3. › State Environmental Planning Policies
4. › Power of Governor to make SEPPs
5. › Whether valid Ministerial recommendation is a precondition to exercise of power
6. › Whether earlier SEPP can constrain Governor's power to make subsequent SEPP
7. › Environmental Planning and Assessment Act 1979 (NSW), ss 37(1), 38
1. Environment and Planning
2. › Environmental planning instruments
3. › State Environmental Planning Policies
4. › Contamination and remediation requirements
5. › Whether Minister is 'planning authority' for purposes of SEPP 55 cl 6
6. › Whether SEPP 55 cl 6 applies to Ministerial recommendation to make SEPP
7. › State Environmental Planning Policy No 55, cl 6
1. Environment and Planning
2. › Development contributions
3. › Voluntary planning agreements
4. › Enforcement by suitable means
5. › Whether 'suitable means' in s 93F(3)(g) creates objective jurisdictional fact or evaluative judgment
6. › Whether registration under s 93H and novation mechanisms constitute suitable means of enforcement
7. › Environmental Planning and Assessment Act 1979 (NSW), s 93F(3)(g)
1. Administrative Law
2. › Jurisdictional fact
3. › Evaluative judgments
4. › Whether statutory criterion requiring 'suitable means' of enforcement specifies jurisdictional fact
5. › Indicators of objectivity and essentiality

Quick Take

A valid Ministerial recommendation is not a precondition to the Governor's exercise of the power to make a SEPP under s 37(1) of the EPA Act; the power is conditional only on Executive Council advice and the statutory purpose requirement. The 'suitable means of enforcement' requirement in s 93F(3)(g) for voluntary planning agreements is an evaluative judgment entrusted to the Minister, not an objective jurisdictional fact reviewable by a court. Registration of a planning agreement under s 93H, combined with novation mechanisms and ministerial approval of transferee financial capacity, can constitute a 'suitable means' of enforcement. The ejusdem generis principle does not restrict the meaning of 'suitable means' by reference to the examples of 'bond or guarantee'.