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 land.

The central legal issue before Gageler J was whether the Commonwealth's proposed development was subject to the planning controls of the Hornsby Local Environmental Plan 2013 (LEP) and the Hornsby Development Control Plan 2013 (DCP). Specifically, the court had to determine if the Commonwealth, in its capacity as a landowner and developer, was bound by these state and local planning instruments, or if it was exempt by virtue of the *Environment Protection and Biodiversity Conservation Act 1999* (Cth) (EPBC Act) and the *Defence Works (Environmental Planning and Assessment) Act 1989* (Cth) (Defence Works Act).

Gageler J reasoned that the EPBC Act, by its express terms, did not confer any power on the Commonwealth to override state or local planning laws. Instead, it established a framework for the assessment and approval of actions likely to have a significant impact on matters of national environmental significance. The Defence Works Act, however, was found to operate differently. Section 11 of that Act provides that a "defence work" is not subject to the provisions of any environmental planning instrument, and that no development consent or other approval is required for a defence work. Gageler J concluded that the proposed facility constituted a "defence work" within the meaning of the Defence Works Act, and therefore the Commonwealth was not bound by the LEP or DCP.

Consequently, Gageler J dismissed the Council's application for an injunction.