Background
The Independent Planning Commission granted conditional consent for a 100-megawatt solar farm and battery storage system at Wallaroo. Benjamin Faulks and Johnny Roso brought both a Class 1 objector appeal and Class 4 judicial review proceedings, alleging among other things that the Commission had failed to consider a required contaminated-land investigation before granting consent.
In the Class 1 appeal, a Commissioner allowed the developer to amend its application by adding the investigation, dismissed the objectors’ appeal and granted consent subject to conditions. Faulks and Roso then filed an appeal on questions of law under s 56A of the Land and Environment Court Act 1979 and sought to amend their Class 4 summons to challenge the Commissioner’s decision directly. The developer sought summary dismissal or strike-out of the Class 4 proceeding, while the objectors asked for both proceedings to be heard together.
The Court’s Holding
Pepper J refused leave to amend the Class 4 summons. The Court held that it lacked jurisdiction in Class 4 to judicially review a Commissioner’s Class 1 decision. The appropriate means of challenging that decision in the Land and Environment Court was an appeal on a question of law under s 56A. The Commissioner’s merits-review decision had replaced the Commission’s decision as the operative consent decision and could potentially cure defects in the original decision.
The Court nevertheless refused to summarily dismiss or strike out the existing Class 4 proceeding. It remained possible that the objectors could succeed in the s 56A appeal and then discontinue the remitted Class 1 proceeding, thereby reviving the Commission’s original consent and making it susceptible to the preserved Class 4 challenge. Because the two proceedings concerned the same development and raised overlapping factual and legal questions, the Court ordered them to travel together and be heard concurrently.
Key Takeaways
- A Land and Environment Court Commissioner’s Class 1 decision cannot be challenged through Class 4 judicial review in that Court; the statutory route is an appeal on a question of law under s 56A.
- A merits-review decision replaces the original consent authority’s decision and may cure defects affecting that earlier decision.
- An existing judicial review proceeding may remain viable where later procedural events could revive the original administrative decision, and overlapping proceedings may be heard concurrently to save time and costs and avoid inconsistent judgments.
Why It Matters
The ruling clarifies the procedural boundaries between merits appeals, statutory appeals on questions of law and judicial review in New South Wales planning litigation. Parties challenging a Commissioner’s determination must select the correct appellate forum and cannot use Class 4 proceedings to obtain judicial review of the Court’s own Class 1 decision.
At the same time, the decision shows why an apparently dormant challenge to the original consent authority’s decision should not always be dismissed: the outcome and subsequent handling of an appeal may restore that decision to operative status.