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Bryan v Lane Cove Council

Bryan v Lane Cove Council

Case [2007] NSWLEC 586 17 September 2007

Jurisdiction

Public Exhibition

Alteration of Instruments

Natural Justice & Procedural Fairness

Legitimate Expectation

Administrative Law

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Land and Environment Court

of New South Wales

CITATION: Bryan v Lane Cove Council and Anor [2007] NSWLEC 586

PARTIES:
APPLICANT
Nina Heather Bryan
FIRST RESPONDENT
Lane Cove Council
SECOND RESPONDENT
Minister for Planning

FILE NUMBER(S): 40253 of 2007

CORAM: Jagot J

KEY ISSUES: Judicial Review :- validity of amendments to local environmental plan - whether amendment altered after public exhibition - whether new plan or altered plan - public exhibition requirements - amendment invalid

LEGISLATION CITED: Environmental Planning and Assessment Act 1979
Environmental Planning and Assessment Amendment (Infrastructure and Other Planning Reform) Act 2005
Lane Cove Local Environmental Plan 1987

CASES CITED: John Brown Lenton & Co Pty Ltd v Minister for Urban Affairs and Planning (1999) 106 LGERA 150;
Leichhardt Council v Minister for Planning [No 2] (1995) 87 LGERA 78 ;
Lesnewski v Mosman Municipal Council (2005) 138 LGERA 207;
Maitland City Council v Anambah Homes Pty Ltd (2005) 64 NSWLR 695;
North Sydney Council v Michael Standley & Associates Pty Ltd (1998) 43 NSWLR 468 ;
Qantas Airways Limited v Aravco Limited (1996) 185 CLR 43 ;
Sydney City Council v Ilenace Pty Ltd [1984] 3 NSWLR 414;
Taperell v Randwick City Council (2000) 108 LGERA 309 ;
The King v Hickman; Ex parte Fox and Clinton (1945) 70 CLR 598;
Transport Action Group Against Motorways Inc v Roads and Traffic Authority (1999) 46 NSWLR 598;
Vanmeld Pty Ltd v Fairfield City Council (1999) 46 NSWLR 78 ;
VAW (Kurri Kurri) Pty Ltd v Scientific Committee (Established under s 127 of the Threatened Species Conservation Act 1995) (2003) 58 NSWLR 631;
Woolworths Ltd v Pallas Newco Pty Ltd (2004) 61 NSWLR 707

DATES OF HEARING: 4/9/2007 - 5/9/2007

DATE OF JUDGMENT:
17 September 2007

LEGAL REPRESENTATIVES:
APPLICANT
Mr T F Robertson SC
SOLICITORS
Woolf Associates
FIRST RESPONDENT
Mr A Hawkes
SOLICITORS
Pike Pike & Fenwick
SECOND RESPONDENT
Mr P R Clay
SOLICITORS
Herbert Geer & Rundle

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Jagot J

17 September 2007

40253 of 2007

NINA HEATHER BRYAN
Applicant

LANE COVE COUNCIL
First Respondent

MINISTER FOR PLANNING
Second Respondent
JUDGMENT

Jagot J:
A. Introduction

1 By an application filed on 23 March 2007 and amended on 24 April 2007 the applicant, Ms Bryan, claimed a declaration that Amendment No 62 to Lane Cove Local Environmental Plan 1987 is invalid.

2 Amendment No 62 is a provision made in reliance on s 28 of the Environmental Planning and Assessment Act 1979 (the EPA Act). It applies to land known as 83 and 85 Kenneth Street, Longueville (lots 1 and 2 in DP 1063151, formerly lot 17 in DP 29396). Under its provisions, and for the purpose of enabling development to be carried out in accordance with the LEP or consent granted in accordance with the EPA Act, any covenant, agreement or similar instrument imposing restrictions as to the erection or use of buildings on that land for certain purposes does not…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Bryan v Lane Cove Council

Details

AGLC: Bryan v Lane Cove Council [2007] NSWLEC 586
Case: [2007] NSWLEC 586
Decision Date: 17 September 2007

CaseChat Overview and Summary

In Bryan v Lane Cove Council, the applicant sought a declaration that an amendment to the Lane Cove Local Environmental Plan 1987 (Amendment No 62) was invalid. The amendment related to the suspension of restrictive covenants on certain properties, which the applicant claimed had not been properly exhibited as required by the Environmental Planning and Assessment Act 1979 (EPA Act). The court found that the amendment had not been exhibited as required by the EPA Act, rendering it invalid. The key issue was whether the changes made to the draft amendment after public exhibition were within the power of alteration under s 68(3) of the EPA Act. The court held that the differences were of such significance that the amendment as made could not be considered an outcome of the statutory process, and therefore was not properly exhibited. The court also noted that the breaches of the public exhibition requirements were of such an essential nature that they were not protected by the privative clause in s 35 of the EPA Act. Consequently, the amendment was declared invalid.

Orders