Jessop v WRA Willcocks Pty Ltd - [1988] NSWLEC 156

Land and Environment Court

of New South Wales

CITATION: Jessop v WRA Willcocks Pty Ltd & Ors [1988] NSWLEC 156

PARTIES:
APPLICANT
Jessop
FIRST RESPONDENT
W.R.A. Willcocks Pty Ltd
SECOND RESPONDENT
Hastings Municipal Council
THIRD RESPONDENT
Minister For Planning

FILE NUMBER(S): 40209 of 1988

CORAM: Bignold J

KEY ISSUES: :-

LEGISLATION CITED: Environmental Planning and Assessment Act 1979
Hastings Local Environmental Plan 1987

CASES CITED: George v. Secretary Of State For The Environment (1979);
Geoffrey Twibill v. Warringah Shire Council (1983)

DATES OF HEARING:

DATE OF JUDGMENT:
12/23/1988

LEGAL REPRESENTATIVES:

JUDGMENT:

Bignold J.: On 19th September, 1988 the Applicant commenced class 4 proceedings seeking a declaration that "Hastings Local Environmental Plan 1987 (Amendment No. 4)" gazetted on 12th August, 1988 is invalid, null and void and of no effect. A copy of the impugned plan (which is hereafter referred to as "Amendment No. 4 Plan" is annexed hereto)

The Applicant also claimed interlocutory relief restraining the 2nd Respondent from processing or approving any development application pursuant to the aforesaid Plan.

The claim to interlocutory relief came before the Duty Judge late in October but was not determined. Instead the Duty Judge ordered that the substantive action be expedited and the hearing was specially fixed for 13th to 15th December, 1988.

In its amended points of claim the Applicant alleges four separate grounds (two involving procedural ultra vires and two involving substantive ultra vires) for invalidity of the aforesaid plan. The allegations of procedural ultra vires are -

(i) the 2nd Respondent failed to comply with s.66 of the Environmental Planning and Assessment Act 1979 by failing to display with the draft local environmental plan (ie Amendment No. 4) a copy of the North Coast Regional Environmental Plan 1988 and Directions under s.117(2) of the Environmental Planning and Assessment Act; and

(ii) the 2nd Respondent failed to comply with s.68 of the Environmental Planning and Assessment Act by failing to properly consider a request for a public hearing and failing to hold a public hearing into the draft plan.

The allegations of substantive ultra vires are -

(iii) the 3rd Respondent failed to comply with s.7 and s.70 of the Environmental Planning and Assessment Act by taking into account when making the Amendment No. 4 plan an irrelevant consideration, namely the agreement by the 3rd Respondent (in his capacity as corporation sole created by s.8 of the Environmental Planning and Assessment Act) to acquire by purchase from the 1st Respondent an area of some 236 hectares known as North Brother Mountain being land adjoining the land (containing some 12ha and also owned by the 1st Respondent) to which the Amendment No. 4 plan applied; and

(iv) Amendment No. 4 plan was repugnant to the requirements of cl.29(b) and cl. 29(e) of the North Coast Regional Environmental Plan 1988.

The relevant facts concerning the history of the making of Amendment No. 4 Plan are set out in the extensive affidavit sworn by Mr. Anthony McNamara, the 2nd Respondent's Town Planner. I do…

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

Case: [1988] NSWLEC 156
Decision Date: 12/23/1988

CaseChat Overview and Summary

The case of Jessop v WRA Willcocks Pty Ltd & Ors was heard in the Land and Environment Court of New South Wales. The applicant, Jessop, sought a declaration that the "Hastings Local Environmental Plan 1987 (Amendment No. 4)" was invalid, null and void and of no effect, along with interlocutory relief to restrain the second respondent from processing or approving any development application pursuant to the plan. The legal issues before the court included whether the second respondent had complied with certain provisions of the Environmental Planning and Assessment Act 1979 and whether the amendment plan was repugnant to the North Coast Regional Environmental Plan 1988.

Bignold J found that the applicant had failed to sustain his attack on the actions of the third respondent. The court held that the third respondent, in making the amendment plan, had not taken into account any irrelevant considerations. The court also found that the amendment plan was not repugnant to the North Coast Regional Environmental Plan 1988 as claimed by the applicant. In relation to the alleged breach of s. 66 of the Environmental Planning and Assessment Act, the court found that the supporting material was available for public inspection at the second respondent's Laurieton office, and therefore, there was no breach of duty by the second respondent. The court also held that even if there was a failure on the part of the second respondent to exhibit all the required supporting material, it would not be fatal so as to invalidate the amendment plan. Finally, the court found that the applicant had not established any breach of duty by the second respondent under s.68 of the Environmental Planning and Assessment Act.

The court dismissed the application and ordered that the exhibits be returned.

Orders