Byron Shire Council v Greenfields Mountain - [1999] NSWCA 461

Reported Decision: 105 LGERA 445

New South Wales

Court of Appeal

CITATION: Byron Shire Council v Greenfields Mountain [1999] NSWCA 461

FILE NUMBER(S): CA 40882/98

HEARING DATE(S): 2 December 1999

JUDGMENT DATE:
13 December 1999

PARTIES :

Byron Shire Council
(Appellant)
v
Greenfields Mountain Pty Limited
(Respondent)

JUDGMENT OF: Mason P at 1; Priestley JA at 2; Fitzgerald JA at 3

LOWER COURT JURISDICTION: Land & Environment Court

LOWER COURT FILE NUMBER(S) : LEC 40101/98

LOWER COURT JUDICIAL OFFICER: Sheahan J

COUNSEL: A: S B Austin QC, D Miller
R: J Webster

SOLICITORS: A: Wilshire Webb
R: Halliday & Stainlay, Murwillumbah

CATCHWORDS: Local Government; interpretation of Local Environmental Plan; compulsory acquisition of land; whether Council required to use its best endeavours to acquire land pursuant to Local Environmental Plan; change in zoning; whether right accrued under former zoning.

ACTS CITED: Land Acquisition (Just Terms Compensation) Act 1991, s19
Local Government Act 1993, Chapter 8
Environmental Planning and Assessment Act 1979, ss4,34

CASES CITED:
Esber v The Commonwealth 174 CLR 430
Clarke v Bailey (1993) 30 NSWLR 556
R v Kearney; ex parte Northern Land Council 158 CLR 365
NSW Aboriginal Land Council v The Minister for Administering the Crown Lands Act (1988) 14 NSWLR 685
Mathieson v Burton 124 CLR 1
Robertson v City of Nunawading (1973) VR 819
Newell v R 55 CLR 707
Director of Public Works v Ho Po Sang (1961) AC 901
Ungar v City of Malvern (1979) VR 259
Butts v O'Dwyer 87 CLR 267

DECISION: Appeal dismissed with costs.

THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA 40882/98
LEC 40101/98

MASON P
PRIESTLEY JA
FITZGERALD JA
MONDAY 13 DECEMBER 1999

BYRON SHIRE COUNCIL v GREENFIELDS MOUNTAIN PTY LIMITED

JUDGMENT

1 MASON P: I agree with Fitzgerald JA. 2 PRIESTLEY JA: I agree with Fitzgerald JA. 3 FITZGERALD JA: Byron Shire Council has appealed against a judgment given against it by the Land and Environment Court of New South Wales on 14 October 1998 in a proceeding commenced by the respondent. That Court declared that the Council “… is bound to acquire the land known as lot 103 in DP856767, having been served with a request so to do by the owner pursuant to clause 43(2) of the Byron Local Environmental Plan 1988”, and ordered the Council to “take all such steps as are necessary to seek the consent of the Governor in Council to acquire the land …”. The parties agree that, if the appeal fails, it might be appropriate to vary the declaration and order but, at least in the first instance, it can be left to the parties to determine a suitable form of order, and a form of declaration if a declaration is called for. 4 The parties are also agreed that the question for decision is whether the Council is obliged to use its best endeavours to acquire the land, that the Council’s acquisition of the land would be a compulsory acquisition within the meaning of the

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.

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Details

Case: [1999] NSWCA 461
Decision Date: 13 December 1999

CaseChat Overview and Summary

Byron Shire Council sought to acquire land owned by Greenfields Mountain for the purpose of a public reserve, as mandated by its Local Environmental Plan (LEP). The dispute arose when the Council, after a change in zoning, sought to avoid its obligation to acquire the land. Greenfields Mountain contended that the Council was still bound by the LEP to acquire the land. The matter was heard by the Court of Appeal of New South Wales.

The central legal issues before the Court of Appeal were whether the Council was under a legal obligation to use its best endeavours to acquire the land pursuant to the provisions of the LEP, and whether a right had accrued to Greenfields Mountain under the former zoning that would compel the Council to acquire the land despite the subsequent change in zoning.

The Court of Appeal found that the LEP imposed a positive obligation on the Council to use its best endeavours to acquire the land for the purpose of a public reserve. It held that the Council's subsequent actions, including the change in zoning, did not extinguish this obligation. The Court reasoned that the LEP, as a statutory instrument, created a binding commitment that could not be unilaterally set aside by the Council. The principle applied was that statutory obligations, once created, must be fulfilled unless there is a clear legislative provision to the contrary.

The appeal lodged by Byron Shire Council was dismissed, and the Council was ordered to pay the costs of Greenfields Mountain.

Orders

Orders of the court

Appeal dismissed with costs.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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CITATION:	Byron Shire Council v Greenfields Mountain [1999] NSWCA 461
FILE NUMBER(S):	CA 40882/98
HEARING DATE(S):	2 December 1999
JUDGMENT DATE:	13 December 1999
PARTIES :	Byron Shire Council (Appellant) v Greenfields Mountain Pty Limited (Respondent)
JUDGMENT OF:	Mason P at 1; Priestley JA at 2; Fitzgerald JA at 3

LOWER COURT JURISDICTION:	Land & Environment Court
LOWER COURT FILE NUMBER(S) :	LEC 40101/98
LOWER COURT JUDICIAL OFFICER:	Sheahan J

COUNSEL:	A: S B Austin QC, D Miller R: J Webster
SOLICITORS:	A: Wilshire Webb R: Halliday & Stainlay, Murwillumbah
CATCHWORDS:	Local Government; interpretation of Local Environmental Plan; compulsory acquisition of land; whether Council required to use its best endeavours to acquire land pursuant to Local Environmental Plan; change in zoning; whether right accrued under former zoning.
ACTS CITED:	Land Acquisition (Just Terms Compensation) Act 1991, s19 Local Government Act 1993, Chapter 8 Environmental Planning and Assessment Act 1979, ss4,34
CASES CITED:	Esber v The Commonwealth 174 CLR 430 Clarke v Bailey (1993) 30 NSWLR 556 R v Kearney; ex parte Northern Land Council 158 CLR 365 NSW Aboriginal Land Council v The Minister for Administering the Crown Lands Act (1988) 14 NSWLR 685 Mathieson v Burton 124 CLR 1 Robertson v City of Nunawading (1973) VR 819 Newell v R 55 CLR 707 Director of Public Works v Ho Po Sang (1961) AC 901 Ungar v City of Malvern (1979) VR 259 Butts v O'Dwyer 87 CLR 267
DECISION:	Appeal dismissed with costs.