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Capital Airport Group Pty Ltd v Director-General of the Department of Planning

Capital Airport Group Pty Ltd v Director-General of the Department of Planning

Case [2010] NSWLEC 5 13 January 2010

Judicial Review

Statutory Interpretation

Administrative Discretion

Transitional Provisions

Regulatory Compliance

Administrative Law

Planning & Development Law

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Reported Decision: 171 LGERA 440

Land and Environment Court

of New South Wales

CITATION: Capital Airport Group Pty Ltd v Director-General of the Department of Planning [2010] NSWLEC 5

PARTIES: Capital Airport Group Pty Ltd ACN 080 711 191(Applicant)
Director-General of the Department of Planning (First Respondent)
Queanbeyan City Council (Second Respondent)
Canberra Estates Consortium No 4 Pty Ltd (Third Respondent)

FILE NUMBER(S): 40854 of 2009

CORAM: Lloyd J

KEY ISSUES:
JUDICIAL REVIEW :- making of environmental planning instruments - repealed provisions - transitional provisions - availability of proceeding under the old framework - legislative intent - decision made without power
CONSTRUCTION AND INTERPRETATION: - making of environmental planning instruments - repealed provisions - transitional provisions - construction - legislative intent - incorrect reference to statutory provision

LEGISLATION CITED: Environmental Planning and Assessment Act 1979 Pt 3 Div 4 (as unamended by the Environmental Planning and Assessment Amendment Act 2008) ss 53 - 70
Environmental Planning and Assessment Regulation 2000 cl 9, cl 12

CASES CITED: A & M Short Pty Ltd v Prestige Residential Marketing Pty Ltd [2005] NSWSC 872; (2005) 194 FLR 32
Australian Boot Trade Employee’s Federation v Whybrow & Co (1910) 11 CLR 311
Broken Hill South Ltd v Commissioner of Taxation (NSW) (1937) 56 CLR 337
Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation (1981) 147 CLR 297
Director of Public Prosecutions (Nauru) v Fowler (1984) 154 CLR 627
Dome Resources NL v Silver [2008] NSWCA 322; (2008) 72 NSWLR 693
Envy Trading v State of Queensland [1998] 1 Qd R 413
Graves v Daft (1996) 89 A Crim 452
Green v Minister for Climate Change, Environment and Water [2008] NSWLEC 48
Kingston v Keprose Pty Ltd (1987) 11 NSWLR 404
Lindner v Wright (1976) 14 ALR 105
Michael Realty Pty Ltd v Carr [1975] 2 NSWLR 812
New South Wales Crime Commission v Kelly [2003] NSWCA 245; (2003) 58 NSWLR 71
Peninsula Group Pty Ltd v Registrar-General (NT) (1996) 136 FCR 8
Pongrass Group Operations Pty Ltd v Minister for Planning [2007] NSWLEC 638; (2007) 156 LGERA 250
Q & R Developments Pty Ltd v Sutherland Shire Council [2001] NSWLEC 250; (2001) 117 LGERA 438
Sandvik Australia Pty Ltd v The Commonwealth (1989) 89 ALR 213
Walshe v Prest [2004] NSWCA 94

DATES OF HEARING: 14 December 2009

DATE OF JUDGMENT:
13 January 2010

LEGAL REPRESENTATIVES:
APPLICANT:
A Robertson SC, M N Allars (barrister) and A Stafford (barrister)
SOLICITORS:
Mallesons Stephen Jaques
FIRST RESPONDENT:
S A Duggan (barrister)
SOLICITOR:
C Hanson
Director, Legal Services Branch
Department of Planning
SECOND RESPONDENT:
T T-W To (barrister)
SOLICITORS:
Williams Love & Nicol
THIRD RESPONDENT:
J E Robson SC
SOLICITORS:
Blake Dawson

JUDGMENT:

- 22 -

IN THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Lloyd J

Wednesday, 13 January 2010

LEC No. 40854 of 2009

CAPITAL AIRPORT GROUP PTY LTD v DIRECTOR-GENERAL OF THE DEPARTMENT OF PLANNING & ORS [2010] NSWLEC 5

JUDGMENT

The applicant, Capital Airport Group…

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

AGLC: Capital Airport Group Pty Ltd v Director-General of the Department of Planning [2010] NSWLEC 5
Case: [2010] NSWLEC 5
Decision Date: 13 January 2010

CaseChat Overview and Summary

The case of Capital Airport Group Pty Ltd v Director-General of the Department of Planning involved a challenge by the applicant to a decision made by the Director-General of the New South Wales Department of Planning to issue a certificate under section 65 of the Environmental Planning and Assessment Act 1979 (as unamended by the Environmental Planning and Assessment Amendment Act 2008) to Queanbeyan City Council, allowing the public exhibition of a draft local environmental plan for South Tralee. The applicant argued that the decision was made in excess of power and that the certificate was invalid. The legal issues centered on whether the transitional provisions enabled the Director-General to issue the certificate under the repealed provisions of the Act, or whether the newly enacted provisions applied.

The court found that the applicant's submissions should be accepted. The language used in clause 12(1) of the Regulation in the definition of "pending LEP" was the language employed in section 64 and not section 54. The Director-General does not receive a draft LEP under section 54 - only notice of an intention on the part of the council to prepare an LEP. Moreover, clause 9 of the unamended Regulation stated that the notice to be given by a council under section 54(4) must contain information about the effect of the "proposed" plan, the adequacy of the consultation procedure "to be" adopted and the adequacy of any environmental study "to be" prepared. All of these are steps to be taken before a draft LEP is to be prepared and submitted to the Director-General.

The declarations sought by the applicant were made, and the respondents were ordered to pay the applicant's costs. The court declared that the decision made by the Director-General to issue the certificate was made in excess of power, and that the certificate issued was invalid.

Orders