NSW COURT OF APPEAL DECISION (September 2011)

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Land and Environment Court Appeal Decision (October 2010)

After a 3 day hearing in August, Justice Pain of the Land and Environment Court (LEC) on 18 October dismissed the appeal of our member Shelley Farriss, on the basis that the words "The rate of return will need to be regularly reviewed" does not provide the Minister with the power to review the rate of return and therefore the Court similarly does not have the power to review it, as our member had requested.

This case was being heard as a test case for another 3 similar appeals by our members to the LEC and others to the Local Lands Board.

The Judgement came as a complete surprise to us and our lawyers, because the Auditor-General had issued a report in September 2009 stating that both LPMA and NSW Maritime should review the rate of return by late 2009 and both agencies did so (but have since refused to supply the results, despite FOI requests). Correspondence from both agencies indicating that they either will undertake, or are undertaking, or have undertaken reviews of the rate of return was entered into evidence during the hearing, as was the Auditor-General's report.