De Angelis v Pepping

Case [2015] NSWCA 236

Court of Appeal


Supreme Court


New South Wales

  • Amendment notes
Medium Neutral Citation: De Angelis v Pepping [2015] NSWCA 236
Hearing dates:20 July 2015
Decision date: 20 August 2015
Before: Macfarlan JA at [1]:
Gleeson JA at [8];
Sackville AJA at [9]
Decision:

1. Appeal allowed.
2. Set aside the orders made by Adamson AJ on 25 July 2014.
3. In lieu thereof make the following order:
Declare that the Wingecarribee Local Environmental Plan 2010 (Amendment No 13) is invalid and of no effect.
4. The second respondent (the Council) pay fifty per cent of the costs of the appellant of the proceedings in the Land & Environment Court.
5. The Council pay fifty per cent of the costs of the appellant of the appeal.

Catchwords: ENVIRONMENT AND PLANNING – validity of amendments to Local Environmental Plan (LEP) – gateway determination issued by delegate of Minister – whether community consultation requirements under the Environmental Planning and Assessment Act 1979 (NSW) have been complied with – whether failure to comply with requirements leads to invalidity of amending LEP – whether appellant had notice of the planning proposal - whether council officer had power to make LEP as agent of the council - whether appellant denied procedural fairness
Legislation Cited:

Environmental Planning and Assessment Act 1979 (NSW), ss 4, 5, 24, 34, 35, 53, 54, 55, 56, 57, 58, 59, 74BA, 74C, 123; Pt 3
Environmental Planning and Assessment Amendment Act 2008 (NSW)
Environmental Planning and Assessment Amendment Act 2014 (NSW)
Land and Environment Court Act 1979 (NSW), ss 20, 24, 58(1)
Local Government Act 1993 (NSW), ss 3, 355, 377, 378, 381
Statute Law (Miscellaneous Provisions) Act 2015 (NSW).

Environmental Planning and Assessment Regulation 2000 (NSW), reg 18
Explanatory Note to the Environmental Planning and Assessment Amendment Bill 2008
Cases Cited: De Angelis v Pepping [2014] NSWLEC 108
Hoxton Park Residents Action Group Inc v Liverpool City Council [2011] NSWCA 349; 81 NSWLR 638
Huntlee Pty Ltd v Sweetwater Action Group Inc [2011] NSWCA 378; 185 LGERA 429
Jones v Dunkel [1959] HCA 8; 101 CLR 298
Kirk v Industrial Court of New South Wales [2010] HCA 1; 239 CLR 531
Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; 162 CLR 24
NSW Aboriginal Land Council v Minister for Administering Crown Lands Act (The Nelson Bay Claim) [2014] NSWCA 377; 205 LGERA 219
O’Reilly v The Commissioners for the State Bank of Victoria [1983] HCA 47; 153 CLR 1
Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; 194 CLR 355
Vanmeld Pty Ltd v Fairfield City Council [1999] NSWCA 6; 46 NSWLR 78
Category:Principal judgment
Parties: Alcide De Angelis (Appellant)
Mark Pepping (First Respondent)
Wingecarribee Shire Council (Second Respondent)
The Minister Administering the Environment Planning and Assessment Act 1979 (Third Respondent)
Representation:

Counsel:
A Galasso SC (Appellant)
CJ Leggat SC / T To (Second Respondent)
Submitting appearance (First & Third Respondents)

  Solicitors:
Gadens (Appellant)

Continue reading De Angelis v Pepping

Sign in free to access the full text

Details
AGLC
De Angelis v Pepping [2015] NSWCA 236
Case
[2015] NSWCA 236
Decision Date

CaseChat Overview and Summary

The appellant, De Angelis, appealed to the Court of Appeal of New South Wales against a decision of Adamson AJ in the Land and Environment Court. The dispute concerned the validity of amendments to the Wingecarribee Local Environmental Plan 2010 (Amendment No 13), which the appellant alleged were invalid due to non-compliance with statutory consultation requirements and a denial of procedural fairness.

The primary legal issues before the Court of Appeal were whether the community consultation requirements stipulated by the *Environmental Planning and Assessment Act 1979* (NSW) had been adequately satisfied in relation to the planning proposal, and if not, whether such non-compliance rendered the amending LEP invalid. Further questions arose regarding whether the appellant had received sufficient notice of the planning proposal and whether a council officer possessed the authority to make the LEP as an agent of the council, thereby impacting the appellant's right to procedural fairness.

The Court of Appeal found that the community consultation requirements had not been met, and that this failure led to the invalidity of the amending LEP. The Court reasoned that the procedural defects were significant enough to vitiate the process. Consequently, the appeal was allowed, the previous orders were set aside, and a declaration was made that the Wingecarribee Local Environmental Plan 2010 (Amendment No 13) was invalid and of no effect. The Council was ordered to pay fifty per cent of the appellant's costs in both the Land and Environment Court and the appeal proceedings.

Orders

Orders of the court

1. Appeal allowed.

2. Set aside the orders made by Adamson AJ on 25 July 2014.

3. In lieu thereof make the following order:

Declare that the Wingecarribee Local Environmental Plan 2010 (Amendment No 13) is invalid and of no effect.

4. The second respondent (the Council) pay fifty per cent of the costs of the appellant of the proceedings in the Land & Environment Court.

5. The Council pay fifty per cent of the costs of the appellant of the appeal.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.