Recent Cases

The Next Generation (NSW) Pty Ltd v State of New South Wales [2023] NSWCA 159 (12 July 2023) (Meagher, Gleeson and Beech-Jones JJA)


ENVIRONMENT AND PLANNING — appeal from Land and Environment Court — appellant lodged development application for construction and operation of an energy from waste facility — application refused — appellant commenced Class 1 proceedings — respondents contended application could not be granted by reason of Pt 4 of Ch 9 of the Protection of the Environment Operations (General) Regulation 2022 (NSW) (the “Thermal Energy from Waste Regulation”) — appellant commenced separate Class 4 proceedings seeking declaration that Thermal Energy from Waste Regulation is beyond the regulation-making power in s 323 of Protection of the Environment Operations Act 1997 (NSW) (“POEO Act”) — whether reg 143, which prohibits “thermal treatment of waste” except at certain locations, is a regulation “with respect to” any matter permitted to be prescribed — reg 143 is a regulation “with respect to” the prohibition of “processing… of… waste” as referred to in cl 5(6) of Sch 2 to the POEO Act — whether reg 143 is inconsistent with POEO Act including licensing scheme in Ch 3 — no inconsistency — licence granted under Ch 3 does not grant “authority” beyond avoiding prohibitions under Ch 3 — not the scheme of the POEO Act to only regulate Sch 1 activities by licence conditions — whether reg 145 which, inter alia, prohibits grants of licences under POEO Act which purport to authorise work prohibited by reg 143 invalid so far as it applies to “State significant development” because of inconsistency with provisions of the Environment Planning and Assessment Act 1979 (NSW) (“EPA Act”) — whether s 32 of Interpretation Act 1987 (NSW) permits “general words or expressions” in reg 145 to be read down so not inconsistent with provisions of other legislation — words read down — no inconsistency with EPA Act — appeal dismissed

RELIEF — declarations — where Div 28 of State Environmental Planning Policy (Transport and Infrastructure) 2021 (NSW) came into force after primary judgment — whether Div 28 removed potential for inconsistency between reg 145 and provisions of EPA Act — declaration as to operation of reg 145 not appropriate in circumstances where construction and applicability of Div 28 was not in issue before the primary judge but is reasonably expected to be in issue in Class 1 proceedings on foot between appellant and other parties — no declaratory relief granted