What has happened?
On 9 October 2017, the NSW Minister for Energy and Utilities announced that legislation would be introduced to overturn the decision of the NSW Court of Appeal in 4nature Incorporated v Centennial Springvale Pty Ltd [2017] NSWCA 191.
In that case, the Court of Appeal had upheld an appeal from a decision of the NSW Land and Environment Court (LEC) to dismiss a challenge to a State Significant Development (SSD) consent granted for the continued operation of the Centennial Springvale colliery. Our brief case note on this decision can be found here.
According to the Minister's announcement, legislation will be introduced to Parliament this week to amend the Environmental Planning and Assessment Act 1979 so as to validate the SSD consent for the colliery and to "clarify" that "projects in the Sydney water catchment seeking to expand must maintain or improve water quality compared to their existing consent".
We will provide further details once the proposed legislation is available for review.
The decision to introduce amending legislation follows a judgment handed down by the LEC on 18 September 2017 to list the matters remitted to it by the Court of Appeal for hearing on 16 and 17 October 2017. This was later than the September hearing date pressed for by the Applicants.
At least part of the reason that the Court was unwilling the accommodate the September hearing dates was that the Applicants had delayed in making a formal application for expedition and in filing any evidence in support of an early hearing date.
Implications
Aside from the obvious implications for development proposed with the Sydney water catchment, these developments highlight one of the key risks faced by environment and community groups when challenging State significant development in judicial review proceedings.
That is, where a challenge is successful (or looks likely to be successful) there is a risk that the legislature will step in to overturn (or prevent) the decision of the Court: see, for example, Australians for Sustainable Development Inc v Minister for Planning [2011] NSWLEC 33 at [11] and Ulan Coal Mines v Minister for Mineral Resources & Anor (No 2) [2008] NSWCA 251.
Further information
For further information on this issue please contact Marcus Steele, Director, on (02) 8005-1411 or marcus.steele@steelelaw.com.au.