Moorebank Intermodal Terminal - Objector appeal - Standing of objector to bring appeal

What has happened?

In a judgment delivered on 12 September 2017 (Residents Against Intermodal Development Moorebank Incorporated v Minister for Planning [2017] NSWLEC 115), the NSW Land and Environment Court dismissed a challenge by a project proponent (Qube,) who is the Second Respondent in the proceedings, to the standing of the Applicant/Objector to bring the procedings.

The proceedings involve an "objector appeal" brought in relation to an SSD consent granted for the Moorebank Intermodal Precinct East – Stage 1 project.

The Applicant/Objector, Residents Against Intermodal Development Moorebank Inc (RAIDM Inc), is an incorporated body. However, at the time it made its objection to the development, it was an unincorporated association known as Residents Against Intermodal Development Moorebank (RAID Moorebank). 

Qube argued that RAIDM Inc did not have standing to bring the objector appeal because it:

  1. did not itself lodge an objection to the project; and
  2. did not acquire a right of appeal upon the incorporation of the unincorporated association (RAID Moorebank).

There was no factual dispute that RAIDM Inc, which was only incorporated well after the public exhibition period for the project, did not lodge itself lodge an objection.

The case turned on the operation of Clause 2(1)(b) of Schedule 2 of the Associations Incorporation Act 2009 (AI Act).  This clause relevantly states:

“2 Transfer of assets, rights and liabilities etc
...
(b) the rights and liabilities of the former body become by virtue of this clause the rights and liabilities of the association ..."

A "former body" is defined in the AI Act as an:

“... unincorporated body that has been incorporated as a consequence of its registration under this Act ..."

Qube argued that RAID Moorebank had not been an "incorporated body" for the purposes of the AI Act or, if it was, that it did not make an objection to the development.

In relation to the first point, Qube submitted that RAID Moorebank lacked the necessary characteristics of an incorporated association including "that it will have members (and, by implication, criteria and rules for membership) and rules for meetings and the passing of resolutions, including special resolutions" (Qube Characteristics Submission).

In response, RAIDM Inc submitted that the AI Act does not define "unincorporated body" and that the authorities establish "all that is required for an unincorporated body is some form of combination of persons, having a common interest or purpose, with a degree of organisation and continuity" (RAIDM Inc Characteristics Submission).

As to the second point, Qube argued that the objections purported to have been made by RAID Moorebank were in fact made by the association's chairman/president in his own name (and not on behalf of the association).

Findings by the Court

The Court rejected Qube's challenge to RAIDM Inc's standing to commence proceedings on the following grounds:

  • Sections 79(5) and 98(1) of the Environmental Planning and Assessment Act 1979 (EP&A Act) provide that any "person" may object to development ("person" is defined in the Act as including "an unincorporated group of persons or a person authorised to represent that group"): at [93] to [95];
  • the RAIDM Inc Characteristics Submissions were to be preferred: at [113];
  • the evidence established that:
    • RAID Moorebank was "an unincorporated group of persons" within the meaning of "person" in the EP&A Act: at [96];
    • RAID Moorebank had the characteristics of (and so was) an "unincorporated body" under the AI Act: at [112] to [116]; and
    • the objections were made on behalf of RAID Moorebank: at [98] to [104].

Implications

This case confirms that the Land and Environment Court, when considering questions of standing, will take a broad view of who has (or who is entitled to) make submissions or objections to development. 

Such an approach is (the Court found) "consonant with the object of the EPA Act 'to provide increased opportunity for public involvement and participation in environmental planning and assessment"": see [95].

Further information

For further information on this judgment and its potential implications for your development please contact Marcus Steele, Director, on (02) 8005-1411 or marcus.steele@steelelaw.com.au.