One of the amendments introduced to the Environmental
Protection Act (EP Act) by the Environmental Protection (Chain of
Responsibility) Amendment Act 2016 (Chain of
Responsibility Act) was a requirement that the Land Court
could only stay a financial assurance decision if the holder of the
environmental authority (EA) had provided 75% of
the amount of financial assurance sought by the Department of
Environment and Heritage Protection (DEHP).
The Land Appeal Court has now provided guidance on these
amendments and on when the Land Court can stay a financial
assurance decision without the EA holder providing the 75%
Jonathan Fulcher and Elizabeth Harvey review the decision in
Alphadale Pty Ltd v Chief Executive Department of Environment
and Heritage Protection  QLAC 6, where HopgoodGanim
acted for the successful appellant (the applicant for the
If a stay application is made to the Land Court pending
internal review of a financial assurance decision, and
before any appeal is filed to the Land Court,
section 522 and section 522A of the EP Act will apply, and the
financial assurance decision can only be stayed if the 75% payment
If a stay application is made to the Land Court
after an appeal has been filed to the Land Court,
section 522 and section 552A of the EP Act will not apply, and a
financial assurance decision can be stayed without the 75%
When is the 75% payment required?
The Chain of Responsibility Act introduced a new section 522A to
the EP Act, which states that the Land Court may not grant an
application made under section 522 for a stay of a decision on the
amount of financial assurance required under a condition of an EA,
unless DEHP has been given security of at least 75% of the amount
of financial assurance sought.
In the Alphadale decision, the appellant was successful
in arguing that section 522 and 522A (and therefore the requirement
to pay 75%) did not apply. The following facts applied to the
DEHP made a decision on the amount of financial assurance
required for the appellant's EA (an "original
decision" under the EP Act);
The appellant sought internal review of the financial assurance
decision pursuant to section 521 of the EP Act. On internal review,
DEHP confirmed the original decision (a "review decision"
under the EP Act).
The appellant appealed against the review decision to the Land
Court, and sought a stay of this decision pending the determination
of the appeal.
The appellant argued that section 522, and therefore section
522A of the EP Act did not apply to its stay application, as
section 522 only applies pending internal review and before an
appeal is lodged to the Land Court. The appellant argued that once
an appeal was made to the Land Court, the Land Court had
jurisdiction in the appeal, and had power to grant a stay pursuant
to section 7A of the Land Court Act.
The Land Appeal Court accepted the appellant's argument and
confirmed that the main purpose of section 522 is to give the Land
Court power to stay an original decision pending internal review by
The Land Appeal Court held that once an appeal is made to the
Land Court, the Land Court's power to grant a stay pending the
determination of the appeal is pursuant to section 7A of the Land
Court Act. Section 7A puts the Land Court in the same position as a
court of unlimited jurisdiction, which does have power to stay a
decision of the executive to prevent an appeal right being
On review of the evidence provided to the Land Court below, the
Land Appeal Court stayed the financial assurance decision, without
requiring the appellant to make any additional payment.
If you wish to appeal against a financial assurance decision,
and wish to seek a stay of any financial assurance decision,
contact HopgoodGanim's for further advice.
NSW laws now require developers to give 28 days' notice of an intention to terminate a contract under a sunset clause.
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