Selected recent environment and planning law decisions
ACT Supreme Court
SCOTT
RASHLEIGH v ENVIRONMENT PROTECTION AUTHORITY [2005] ACTSC 18 (18
March 2005)
ADMINISTRATIVE
LAW – appeal from Administrative Appeals Tribunal –
statutory construction – application for licence to take water
– applicant entitled to benefit of Crown lease entered into
prior to commencement of Act – proprietary rights to ground
water under property not impugned by Act – whether Environment
Protection Authority nonetheless entitled to refuse licence due
to concerns relating to overall quantity of water taken from subcatchment
area.
Save
the Ridge Inc. v Australian Capital Territory & Kenoss Contractors
[2004] ACTSC 13 (31 March 2004).
ADMINISTRATIVE LAW - application for injunction
- locus standi - proposed construction of public road over land
some of which was in designated areas under the National Capital
Plan - whether approval by the National Capital Authority excluded
the need for any approval under Territory legislation - whether
regulation under the Land (Planning and Environment) Act (1991)
(ACT) effectively exempted land in designated areas from need
for approval under that Act - whether development in designated
areas undertaken in association with other developments to which
the Territory Act applied.
Federal
Court
Save the Ridge Inc v Commonwealth [2005] FCAFC 203 (16 September
2005)
Full Federal Court (on appeal from Federal Court)
ENVIRONMENT
– policy for the planning of national and arterial roads systems
– National Capital Plan – National Capital Planning
Authority – Commonwealth action – whether action by
authority prohibited under Environment Protection and Biodiversity
Conservation Act 1999 (Cth) – whether action includes making
of amendments to plan – whether action will have an actual
or likely impact on environment – no finding of facts by primary
judge – whether action is a governmental authorisation and
excluded from definition of action under the Act
PRACTICE AND
PROCEDURE – Federal Court Rules O 29 r 2 – formulation
of separate or preliminary questions – difficulties associated
with procedure
WORDS AND PHRASES
– 'action' (EPBC Act)
Save
the Ridge Inc. v Commonwealth of Australia [2005] FCA 17
(20 January 2005) Whitlam J.
ENVIRONMENT – protection from Commonwealth
actions – amendment of arterial roads policy in National Capital
Plan – such amendment not an ‘action’ covered
by Environment Protection and Biodiversity Conservation Act 1999.
Environment Protection and Biodiversity Conservation Act 1999
s 28(1), s 523, s 524(2) Australian Capital Territory (Planning
and Land Management) Act 1988 (Cth) s 10, 11, 12, 21, 22
Save
the Ridge Inc. v National Capital Authority & Anor, [2004] FCA
996, Stone J, 30 July 2004
INJUNCTION - Application for interlocutory
injunction - Application dismissed by primary judge on basis that
the case sought to be made was unarguable.
STATUTORY INTERPRETATION - application of s 28(1)
of the Environment Protection and Biodiversity Conservation
Act 1999 (Cth)
Save
the Ridge Inc. v National Capital Authority & Anor [2004] FCAFC
209, Wilcox, Moore, Gyles JJ, 30 July 2004
INJUNCTION – Application for interlocutory
injunction – Application dismissed by primary judge on basis
that the case sought to be made was unarguable – Whether primary
judge was correct in that assessment – Delay by the appellant
in instituting principal proceeding – Whether interlocutory
relief should be refused on discretionary grounds having regard
to that delay.
Environment
Protection and Biodiversity Conservation Act 1999 (Cth) ss
5, 28, 523 and 524.
Minister
for the Environment and Heritage v Queensland Conservation Council
Inc and World Wide Fund for Nature [2004] FCAFC 190 (30 July 2004)
BLACK CJ, RYAN and FINN JJ, 30 JULY 2004, SYDNEY (heard in BRISBANE)
ADMINISTRATIVE LAW – judicial review –
whether the Minister failed to take into account relevant considerations
– whether the decision involved an error of law
STATUTORY INTERPRETATION – ordinary English
meaning clear in context of Act – unnecessary in circumstances
of case to consider other intrinsic or extrinsic aids to interpretation
or approaches to interpreting environmental legislation in other
jurisdictions
Environment
Protection and Biodiversity Conservation Act 1999 (Cth) Pt
3, ss 75, 391, 523 and 524A
Environment Protection (Impact of Proposals) Act 1974 (Cth)
Environmental Planning and Assessment Act 1979 (NSW)
Water Act 2000 (Qld)
Queensland
Conservation Council Inc v Minister for the Environment and Heritage
[2003] FCA 1463 (19 December 2003)
ADMINISTRATIVE LAW - judicial review - whether
the Minister complied with administrative procedures - whether the
Minister failed to take into account relevant considerations - whether
the decision involved an error of law - whether the decision was
an improper exercise of the power conferred by the enactment
STATUTORY INTERPRETATION - public policy - objects
of the Act
Administrative
Appeals Tribunal ACT
FISHER
v ACT PLANNING & LAND AUTHORITY & ORS [2005] ACTAAT
1 (1 MARCH 2005) AT04/116
Catchwords:
Land and planning – review of decision approving dual occupancy
development in heritage precinct – mandatory requirements
of heritage register – whether development proposal would
retain the visual characteristics of the original development when
viewed from the street as a single detached dwelling.
Land (Planning and Environment) Act 1991, ss. 8, 54, 229,
230, 245
CHERRY
& ROUNDS v ACT PLANNING & LAND AUTHORITY & ORS/OLD NARRABUNDAH
COMMUNITY COUNCIL INC. v ACT PLANNING & LAND AUTHORITY &
ORS [2004] ACTAAT 36 (24 SEPTEMBER 2004) AT04/66 & 69
Catchwords: Crown lease – change of purpose clause from club
to residential use – change consistent with land use policy
in Territory Plan – whether land should be retained for community
use – land previous held under concessional lease –
whether lease variation adequately advertised.
Proposal for
two-storey building with 74 residential units – requirement
for 50 per cent adaptable units – traffic and parking –
design and siting – set backs from boundaries and interface
between dwellings - overshadowing and overlooking - absence of specific
plot ratio - whether preliminary environment assessment required
– urban planning – scale of development - interface
with neighbourhood.
Administrative
Appeals Tribunal Act 1989, s. 37
Land (Planning & Environment) Act 1991, ss. 8, 25,
29(4), 171, 229, 231(1)(a)(iii), 276(5), 284
Planning & Land Act 2003, s.11
Land (Planning & Environment) Regulation, regs. 4
DAVIES/FITZGIBBONS & BOOTES AND CONSERVATOR OF FLORA & FAUNA
& ORS [2004] ACTAAT 35 (22 SEPTEMBER 2004) AT04/82 & 85
Catchwords:
Review of decisions approving tree damaging activities – removal
of one of a number of closely planted trees to permit other trees
to develop fully – removal of tree which represents unacceptable
risk to public or private safety – effect of construction
work in tree protection zone on health of tree – imposition
of conditions – importance of trees in surrounding landscape.
Administrative
Appeals Tribunal Act 1989, s. 37
Tree Protection (Interim Scheme) Act 2001, ss. 6, 8, 10,
12, 13, 15, 21, 47
WAGNER & FUARY AND CONSERVATOR OF FLORA & FAUNA & ORS
[2004] ACTAAT 32 (17 SEPTEMBER 2004) AT02/100
Catchwords:
Tree damaging activity – application for approval to remove
significant tree to permit dual occupancy – whether all reasonable
development options and design solutions have been considered to
avoid tree damaging activity.
Land (Planning
and Environment) Act 1991, s. 229
Tree Protection (Interim Scheme) Act 2001, ss. 6, 21
McCullough
and ACT Planning & Land Authority & Ors [2004] ACTAAT 28
(24 August 2004)
Catchwords: Land and planning - development
application for construction of telecommunications tower - jurisdiction
of Tribunal - whether decision to approve development application
exempt from appeal - whether tower is a reticulated or trunk supply
service - whether tower involves utilities work or is a class 10b
structure - whether cabling used for carrying electromagnetic signals.
McCullough
& Franze and ACT Planning & Land Authority & A nor [2004]
ACTAAT 24 (24 June 2004)
Catchwords: Land and planning - review of decision
not to make an order - commencing development without approval -
need for National Capital Authority approval and Territory approval
in designated area - whether applicants have standing to appeal
- summons issued to produce documents - whether such summonsed person
is a witness - entitlement to claim costs in complying with summons.
Moore
& Ors and ACT Planning & Land Authority and Anor [2004]
ACTAAT 22 (28 May 2004)
Catchwords: Land and planning - application
to strike out applications for review of decision - whether Tribunal
empowered to extend time for lodging appeal by objector to development
application - whether section 27 of Administrative Appeals Tribunal
Act 1989 is excluded or modified by section 276 of the Land
(Planning and Environment) Act 1991.
Save
The Ridge Inc. and ACT Planning and Land Authority & Anor [2004]
ACTAAT 16 (7 May 2004)
Catchwords: Land and planning - objection to
Gungahlin Drive Extension - undertaking not to carry out related
work pursuant to approval of development application - amendment
of regulations to exempt requirement for approval - whether appeal
frivolous and vexatious - whether jurisdiction of Tribunal needs
to be determined before exercising power to dismiss appeal.
Kippax
Task Force and ACT Planning & Land Authority & Ors [2004]
ACTAAT 11 (23 March 2004)
Catchwords: Land and planning - jurisdiction
of Tribunal where parties joined and applicant subsequently found
not to have standing.
McCullough
and ACT Planning & Land Authority & Anor [2004] ACTAAT 9
(17 March 2004)
Catchwords: Administrative Appeals Tribunal
Act 1989 - application to dismiss pursuant to section 43A -
frivolous and vexatious - whether applicant has standing.
Pulbrook
& Dwyer and ACT Planning & Land Authority & Anor [2004]
ACTAAT 2 (16 January 2004)
Catchwords: Land and planning - jurisdiction
of Tribunal - whether a decision to approve a development application
on conditions is made under section 230 or section 245 of the Land
(Planning and Environment) Act - whether appeal by objector
is made under section 275 or section 276 of the Land (Planning
and Environment) Act - whether appeal under section 276 excluded
by the Land (Planning and Environment) Regulations - whether Regulations
can assist in interpretation of parent Act - order for costs - recommendation
for amendment of legislation - failure of decision-maker to comply
with directions.
Thornbrook
Pty Ltd & Cowper Pty Ltd and Commissioner for Land & Planning
& Ors [2002] ACTAAT 7 (27 March 2002)
Catchwords: Land and planning - application
to vary lease and to construct 138 single residential units - variation
of Territory Plan to permit residential use in Entertainment, Accommodation
and Leisure land use area - effect of failure to prepare a Landscape
Master Plan as required by Variation to Territory Plan - consideration
of action plans prepared under Nature Conservation Act 1980 for
the preservation of Yellow Box/Red Gum Grassy Woodland and Regent
Honeyeater - traffic, social planning and design and siting issues
- whether Residential Design & Siting Code for Multi-Dwelling
Development applies to residential development in B8 entertainment,
Accommodation and Leisure land use areas.
Environment Protection and Biodiversity Conservation Act 1999
(Cth), s. 75
Land (Planning and Environment) Act 1991, ss. 7, 8, 13,
29, 30, 32, 230
Nature Conservation Act 1980, ss. 21, 23, Div. 3.4
Natural Heritage Trust of Australia Act 1997 (Cth)
Tree Protection (Interim Scheme) Act 2001
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