Aeropelican Air Services v Lake Macquarie City Council

Aeropelican Air Services Pty Ltd (Aeropelican) appealed to the New South Wales Court of Appeal against a decision of the primary judge concerning the interpretation of a provision within the Lake Macquarie Local Environmental Plan 1987 (LEP). The dispute centred on whether the Council was obliged to acquire Aeropelican's land after it had served a notice under clause 17 of the LEP, which provided for the acquisition of land zoned for a public purpose. Aeropelican contended that by serving the notice, the Council had created an obligation to acquire the land, whereas the Council argued that the provision was permissive rather than mandatory.

The Court of Appeal was required to determine the proper construction of clause 17 of the LEP. Specifically, the central legal issue was whether the wording of clause 17 imposed a binding obligation on the Council to acquire land once a notice of intention to acquire had been served by the landowner, or whether it merely provided a mechanism for landowners to request acquisition, with the Council retaining discretion.

The Court analysed the language of clause 17, noting that it stated the Council "may acquire" land zoned for a public purpose. Their Honours considered the ordinary meaning of "may" in statutory interpretation, which generally indicates a power or discretion rather than a mandate. The Court found that the provision did not contain any language that compelled the Council to acquire the land, nor did it create a right for the landowner to force an acquisition. The Court concluded that clause 17 conferred a power on the Council to acquire land, which it could exercise or not exercise at its discretion, and that the serving of a notice by the landowner did not convert this power into an obligation.

The appeal was dismissed, and Aeropelican was ordered to pay the costs of the appeal.