What has happened?

On 21 December 2017, the NSW Land and Environment Court  handed down its decision in the following Class 4 proceedings: Moorebank Recyclers Pty Ltd v Tanlane Pty Ltd (No 2)  [2017] NSWLEC 186.

A key issue in the proceedings was the application of Clause 6 of State Environmental Planning Policy No 55 - Remediation of Land (SEPP 55):

1. to the preparation of a Planning Proposal; and
2. to the making of a Gateway determination.

This issue arose in the context of the Applicant's challenges:

1. to the relevant Council's resolution to support "in principle" the forwarding of a Planning Proposal to the Greater Sydney Commission (GSC) for a Gateway Determination; and
2. to the subsequent decision by the GSC to issue a Gateway Determination for the Planning Proposal.

Findings by the Court

The Court found that Clause 6 of SEPP 55 was not engaged (and so did not need to be complied with) in the making of either decision under challenge.

The key statutory provisions falling for consideration in this case were Clause 6 of SEPP 55 and Section 55 and Section 56 of the Environmental Planning and Assessment Act 1979 (EP&A Act).

Clause 6 of SEPP 55 relevantly states (emphasis added):

"6   Contamination and remediation to be considered in zoning or rezoning proposal

(1)  In preparing an environmental planning instrument, a planning authority is not to include in a particular zone (within the meaning of the instrument) any land specified in subclause (4) if the inclusion of the land in that zone would permit a change of use of the land, unless:

(a)  the planning authority has considered whether the land is contaminated, and

(b)  if the land is contaminated, the planning authority is satisfied that the land is suitable in its contaminated state (or will be suitable, after remediation) for all the purposes for which land in the zone concerned is permitted to be used, and

(c)  if the land requires remediation to be made suitable for any purpose for which land in that zone is permitted to be used, the planning authority is satisfied that the land will be so remediated before the land is used for that purpose.

(2)  Before including land of a class identified in subclause (4) in a particular zone, the planning authority is to obtain and have regard to a report specifying the findings of a preliminary investigation of the land carried out in accordance with the contaminated land planning guidelines."

Sections 55 and 56 of the EP&A Act relevantly state:

"55   Relevant planning authority to prepare explanation of and justification for proposed instrument—the planning proposal

"(1)  Before an environmental planning instrument is made under this Division, the relevant planning authority is required to prepare a document that explains the intended effect of the proposed instrument and sets out the justification for making the proposed instrument (the planning proposal) ...

56   Gateway determination

(1)  After preparing a planning proposal, the relevant planning authority may forward it to the Minister.

(2)  After a review of the planning proposal, the Minister is to determine the following:

(a)  whether the matter should proceed (with or without variation) ..."

Put simply, the Court found that there was no intersection between the statutory requirements of Clause 6 of SEPP 55 and Section 55 and 56 of the EP&A Act.

The scope of Clause 6 of SEPP 55 is confined to the preparation of an environmental planning instrument (EPI).

The Court held that, as neither of the procedures described in Section 55 (making of planning proposal) or Section 56 (making of gateway determination) could properly be described as the preparation of an EPI they necessarily fell outside the scope of Clause 6.

Implications

This case underscores the difficulty of successfully challenging the making of an amendment to an EPI. The procedures relating to the making of a planning proposal and a Gateway Determination are relatively imprecise and allow decision makers considerable procedural latitude.

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.