El Cheikh v Hurstville City Council

The appeal concerned a dispute between El Cheikh and Hurstville City Council regarding the validity of Hurstville Local Environmental Plan 1994 (Amendment No 23). The primary issue was whether the public notice given for the draft local environmental plan was misleading due to its failure to state the plan's purpose concerning height restrictions. The matter was heard in the Court of Appeal of New South Wales.

The court was required to determine whether the public notice provided for the draft local environmental plan was adequate and complied with the relevant statutory requirements. Specifically, it needed to consider whether the notice was misleading by omitting information about height restrictions. Furthermore, the court had to assess whether a second, separate plan, which was silent on these restrictions, should be interpreted in conjunction with the first plan. The court also had to consider whether the instrument was made in excess of power and, if so, whether invalid provisions could be severed, leaving the remainder valid.

The court reasoned that the public notice was indeed misleading because it failed to adequately inform the public about the significant impact of the proposed amendment on height restrictions. This omission meant that the notice did not fulfil its statutory purpose of enabling interested parties to make informed submissions. The court applied principles of statutory interpretation, including the requirement for clarity and accuracy in public notices concerning planning instruments, and considered the potential for invalidity if an instrument was made in excess of power. The court found that the invalidity of the notice rendered the entire amendment invalid.

Consequently, the Court of Appeal upheld the appeal, set aside the orders of the primary judge, and declared Hurstville Local Environmental Plan 1994 (Amendment No 23) invalid and of no effect. The Council was ordered to pay the appellant's costs of both the appeal and the proceedings in the court below.