Fullerton Cove Residents Action Group Incorporated v Dart Energy Ltd (No 2)

(2013) 195 LGERA 229; [2013] NSWLEC 38

NSW Land and Environment Court

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Interrogate

Catchwords

1. Administrative Law
2. › Judicial review
3. › Jurisdictional fact
4. › Whether statutory precondition gives rise to jurisdictional fact
5. › Whether 'likely to significantly affect the environment' is a jurisdictional fact
6. › Environmental Planning and Assessment Act 1979 (NSW), s 112(1)
1. Administrative Law
2. › Judicial review
3. › Mandatory relevant considerations
4. › Duty to examine and take into account environmental matters
5. › Whether determining authority gave proper genuine and realistic consideration
6. › Environmental Planning and Assessment Act 1979 (NSW), s 111
1. Environmental Law
2. › Environmental impact assessment
3. › Part 5 activities
4. › Requirement for environmental impact statement
5. › Whether activity likely to significantly affect the environment
6. › Environmental Planning and Assessment Act 1979 (NSW), ss 111, 112
1. Statutory Interpretation
2. › Construction of environmental legislation
3. › Meaning of 'likely to significantly affect the environment'
4. › Meaning of 'examine and take into account to the fullest extent possible'
5. › Environmental Planning and Assessment Act 1979 (NSW), ss 111, 112

Quick Take

Section 112(1) of the Environmental Planning and Assessment Act 1979 gives rise to a jurisdictional fact, meaning a court can determine for itself on all available evidence (including expert evidence) whether an activity is likely to significantly affect the environment. This resolves the ambiguity left by the Court of Appeal's obiter in Timbarra and the assumption in Parks and Playgrounds. The ESG2 Guidelines are not guidelines for the purposes of cl 228 of the Regulations and cannot operate as a binding determination of significance under s 112. 'Likely' means 'a real chance or possibility' and 'significantly' means 'important, notable, weighty or more than ordinary'.