McCloy and Ors v State of New South Wales and Anor

The applicants, McCloy and others, challenged the validity of certain provisions of the *Coastal Protection Act 1979* (NSW) and the *Environmental Planning and Assessment Act 1979* (NSW) in proceedings before the High Court of Australia. The dispute concerned the constitutional validity of legislation that permitted the Minister for Planning to grant development consent for development on land identified as being at high risk of coastal erosion, notwithstanding that the development might otherwise be prohibited under the relevant planning instruments. The applicants contended that these provisions were invalid as they purported to confer on the Minister a power that was legislative in nature, thereby contravening Chapter I of the Constitution.

The central legal issue before the High Court was whether the impugned provisions of the *Coastal Protection Act 1979* (NSW) and the *Environmental Planning and Assessment Act 1979* (NSW) impermissibly conferred legislative power on the executive, contrary to the separation of powers doctrine enshrined in Chapter I of the Australian Constitution. Specifically, the Court had to determine if the power to grant development consent in circumstances where it would otherwise be prohibited constituted an exercise of legislative power, or if it was a valid exercise of administrative power.

Gageler J, in his reasons, considered the nature of legislative power as the power to make laws of general application. His Honour distinguished this from administrative power, which involves the application of existing laws to specific circumstances. Gageler J found that the provisions in question did not create new rules of general application but rather allowed for the Minister to grant consent to specific development proposals, thereby applying existing planning laws to particular factual situations. His Honour concluded that the power conferred was administrative in nature, as it involved the exercise of discretion within a statutory framework to permit or refuse development, rather than the creation of new law. Consequently, the provisions did not offend the separation of powers.