Hornsby Shire Council v Commonwealth of Australia & Anor

The case of *Hornsby Shire Council v Commonwealth of Australia & Anor* concerned a dispute between Hornsby Shire Council and the Commonwealth of Australia, represented by the Minister for Defence, and the Commonwealth of Australia itself. The Council sought to prevent the Commonwealth from undertaking certain works on land it owned at 100 Old Northern Road, Dural, New South Wales. The Commonwealth intended to construct a new facility for the Australian Signals Directorate on this site.

The central legal issue before Gageler J was whether the proposed works by the Commonwealth were authorised by section 118 of the *Defence Act 1903* (Cth) and, if so, whether the Commonwealth was nonetheless bound by the planning and development laws of New South Wales, specifically the *Environmental Planning and Assessment Act 1979* (NSW) and the *Hornsby Local Environmental Plan 2013*. The Council contended that the Commonwealth's proposed development required development consent under the NSW legislation, while the Commonwealth argued that section 118 of the *Defence Act* provided an overriding power to construct defence works without such consent.

Gageler J reasoned that section 118 of the *Defence Act* confers a broad power on the Commonwealth to construct defence works, and that this power is not limited by the need to obtain development consent under state planning legislation. His Honour applied the principle of constitutional supremacy, which dictates that Commonwealth legislation enacted under a head of power in the Constitution will prevail over inconsistent state legislation. The Court found that the *Defence Act* evinced a clear intention by the Commonwealth Parliament to authorise the construction of defence facilities without being subject to state planning controls, thereby rendering the Council's requirement for development consent invalid in this instance.

The application by Hornsby Shire Council was dismissed.