Sweetwater Action Group Inc v Minister for Planning and Huntlee Holdings Pty Ltd

July 2011 & December 2011

EDO NSW acted on behalf of the Sweetwater Action Group Inc (SWAG) who challenged a decision of the Minister for Planning to rezone a large area of land in the Hunter Valley to allow for development of Huntlee New Town for some 20,000 residents. The area contains one of the last remaining habitats of the Persoonia pauciflora, a critically endangered native shrub, and is also highly contaminated.

The grounds of the challenge focussed on whether the Minister considered the requirements of State Environmental Planning Policy No. 55 (SEPP 55) for remediation of contaminated land, and the enforceability of a Voluntary Planning Agreement (VPA) intended to offset clearing as a result of the development. The challenge also raised the issue of bias in relation to the Lower Hunter Regional Strategy.

On 7 July 2011, Justice Biscoe of the Land and Environment Court (LEC) found in favour of SWAG on two of its three grounds, declaring that the decision of the Minister to recommend the making of an Amending SEPP to give effect to the rezoning, and the Amending SEPP itself, were invalid.

Huntlee and the Minister both filed separate appeals against the decision of Justice Biscoe, challenging his Honour’s findings on SEPP 55 and the VPA. On 8 December 2011, the NSW Court of Appeal overturned the decision made by the LEC, upholding the appeals of Huntlee and the Minister.

The Court of Appeal held that Biscoe J erred in concluding that the Amending SEPP was invalid by reason of non-compliance with clause 6 of SEPP 55. The Court found that the making of a recommendation by a Minister is an exercise of executive (not administrative) power, and that a “valid” Ministerial recommendation is not a necessary precondition to the Governor’s power to make a SEPP.

With respect to the VPA, the Court considered whether the agreement was “enforceable by suitable means” as required by the Environmental Planning and Assessment Act 1979. Their Honours found that the provisions for registration of the VPA, by which the obligations would “run with the land”, were suitable means of enforcement including in respect of commitments to make monetary contributions. Accordingly, the VPA was capable of being taken into account by the Minister in making the recommendation.

EDO NSW is grateful to Ms Christine Adamson SC and Mr James Hutton who appeared as counsel for SWAG in the LEC, and Mr Robert Beech-Jones SC and James Hutton who appeared as counsel in the Court of Appeal, as well as the assistance of Mr Mark Seymour in the LEC.

Judgment Appeal