Warkworth Mining Limited v Bulga Milbrodale Progress Association Inc

(2014) 307 ALR 262; [2014] NSWCA 105

NSW Court of Appeal

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Interrogate

Catchwords

1. Environment and Planning
2. › Major infrastructure development
3. › Part 3A approval
4. › Re-exercise of Minister's power by Land and Environment Court
5. › Balancing environmental, social and economic factors
6. › Whether project should be approved
7. › Environmental Planning and Assessment Act 1979 (NSW), Pt 3A, ss 75J, 75L(3)
1. Environment and Planning
2. › Major infrastructure development
3. › Ecologically sustainable development
4. › Public interest
5. › Whether public interest embraces principles of ecologically sustainable development
6. › Whether community responses relevant to public interest
7. › Environmental Planning and Assessment Act 1979 (NSW), s 5(a)(vii)
1. Administrative Law
2. › Appeal on a question of law
3. › Procedural fairness
4. › Whether failure to adduce evidence gives rise to denial of procedural fairness
5. › Whether party bears responsibility for adducing evidence to meet an issue
6. › Land and Environment Court Act 1979 (NSW), ss 38(1), 57
1. Administrative Law
2. › Appeal on a question of law
3. › Mandatory considerations
4. › Director-General's Environmental Assessment Report
5. › Whether mandatory consideration must be treated as 'focal point' or 'fundamental element'
6. › Whether prima facie effect must be given to recommendations
7. › Environmental Planning and Assessment Act 1979 (NSW), s 75J(2)

Quick Take

The Director-General's Environmental Assessment Report under s 75J(2) of the EPA Act is a mandatory consideration but does not have to be treated as a 'focal point' or 'fundamental element'; there is no requirement for prima facie effect to be given to its recommendations or for the decision-maker to articulate why those recommendations should not be followed. The Mining Act 1992 is not 'relevant legislation' under s 39(4) of the Land and Environment Court Act 1979 because the operative provisions of the Mining Act do not deal with the grant of development consent, and the requirement under s 65 that development consent be obtained before a mining lease is granted indicates the two processes are separate and distinct. A party asserting a factual basis for an issue bears the responsibility for adducing the necessary evidence; failure to adduce evidence does not give rise to a denial of procedural fairness.