Kennedy v NSW Minister for Planning

COURT OR TRIBUNAL

New South Wales Land and Environment Court

DATE FILED (OR FIRST HEARING DATE)

08/06/2010

LITIGATION TYPE

Project Approval - Adaptation, Access to Justice

SUBJECT MATTER

Coastal hazard, Costs

REVIEW TYPE

Judicial review

SUMMARY

Challenge to the decision of Minister to give major projects approval to a retirement home development proposal first challenged in Walker. Grounds for review included failure to consider mandatory relevant consideration including flooding impacts from climate change. Court affirmed the requirement, established in Walker, for decision-makers to take into account the potential impacts of coastal hazards on the proposed development. The Court dismissed Kennedy's submission on the grounds that the environmental assessment now dealt with climate change related flooding and ecologically sustainable development, and that the Court of Appeal's judgment in Walker had been taken into account in a number of relevant reports considered by the Minister.

In the costs judgment, the Court considered whether the proceedings had been brought in the public interest and if so, whether to relieve Kennedy, as the losing party, of paying the Minister's legal costs. The Court ordered that Kennedy pay part of the costs as the Minister had considered the climate change and flooding issue when granting approval. The Court affirmed the 'strong element of public interest' in the climate change/flooding impacts relevant to the site.

CASE DOCUMENTS

Kennedy v NSW Minister for Planning [2010] NSWLEC 129; 176 LGERA 395
Kennedy v NSW Minister for Planning [2010] NSWLEC 164