Lane Cove Council v the Minister for Urban Affairs and Planning

Lane Cove Council (the appellant) challenged the validity of an amendment to State Environmental Planning Policy No. 53 ("SEPP 53") that had been gazetted. The dispute arose because the gazetted amendment differed significantly from an earlier draft SEPP that had been publicly exhibited. The matter came before the court on appeal from a decision of the primary judge.

The court was required to determine several legal issues concerning the validity of the gazetted SEPP. These included whether the SEPP was invalid because it was not a "new" SEPP prepared by the Director-General at the Minister's request under section 37(2) of the *Environmental Planning and Assessment Act 1979* (EPA Act). Further issues were whether the SEPP was invalid due to substantial differences from the earlier draft, meaning it was not made in accordance with "that draft State environmental planning policy submitted to the Minister" under section 39(1)(a) or "that draft State environmental planning policy with such alterations as the Minister thinks fit" under section 39(1)(b). The court also considered whether the SEPP was invalid because it was not exhibited for public submission, despite the earlier draft having been exhibited, and whether the Minister's discretion under section 39(2) not to publicise a draft SEPP was constrained by the prior conduct of publicising the draft.

The court reasoned that the Minister retained a plenary power to cause a new draft SEPP to be prepared, and also a power to make such alterations to a draft SEPP as the Minister thought fit. The court found that the differences between the gazetted SEPP and the earlier draft were not so substantial as to invalidate the SEPP. The court held that the Minister had acted within the scope of the powers conferred by the EPA Act, including section 39(1)(b), and that the process followed was lawful. The appeal was dismissed with costs.