Ryan v The Minister for Planning

[2015] NSWLEC 88

Land and Environment Court

New South Wales

Medium Neutral Citation:

Ryan v The Minister for Planning [2015] NSWLEC 88

Hearing dates:

1 December 2014; written submissions 20 May 2015

Date of orders:

05 June 2015

Decision date:

05 June 2015

Jurisdiction:

Class 4

Before:

Sheahan J

Decision:

(1)I declare that Lismore Local Environmental Plan 2012 (Amendment No 3), published on the New South Wales legislation website on 21 February 2014, is invalid and of no effect.
(2)I order the first respondent to pay the applicant’s costs of these proceedings, as agreed or assessed.
(3)All Exhibits and Court Books are returned.

Catchwords:

JUDICIAL REVIEW – challenge to making of a local environmental plan – whether the LEP as made is “significantly” different from the publicly exhibited proposal – invalidity – the LEP must remain “a product” of the LEP making process under the Environmental Planning and Assessment Act 1979 – the impugned LEP differed in material respects to the exhibited proposal and was therefore not a “product of the process” – LEP invalid

Legislation Cited:

Environmental Planning and Assessment Act 1979
Greater Metropolitan Regional Environmental Plan No 1 – Redevelopment of Urban Land
Lismore Local Environmental Plan 2000
Lismore Local Environmental Plan 2012
Local Government Act 1993
Manly Local Environmental Plan 2013

Cases Cited:

Bryan v Lane Cove Council [2007] NSWLEC 586; 158 LGERA 390
Chief Executive Officer of Customs v Tony Longo Pty Ltd (t/as Aquila Shoes) [2001] NSWCA 147; 52 NSWLR 458
DeAngelis v Pepping [2014] NSWLEC 108; 203 LGERA 61
El Cheikh v Hurstville City Council [2002] NSWCA 173; 121 LGERA 293
Friends of Turramurra Inc v Minister for Planning [2011] NSWLEC 128
John Brown Lenton & Co Pty Ltd v Minister for Urban Affairs and Planning [1999] NSWLEC 213; 106 LGERA 150
Leichhardt Council v Minister for Planning (No 2) (1995) 87 LGERA 78
Save Little Manly Beach Foreshore Incorporated v Manly Council (No 2) [2013] NSWLEC 156
Save Little Manly Beach Foreshore Incorporated v Manly Council (No 3) [2015] NSWLEC 77
Smith v Wyong Shire Council [2003] NSWCA 322; 132 LGERA 148
Soong v Deputy Commissioner of Taxation [2011] NSWCA 26; 80 NSWLR 226
Vanmeld Pty Ltd v Fairfield City Council [1999] NSWCA 6; 46 NSWLR 78

Category:

Principal judgment

Parties:

Michael Ryan (Applicant)
The Minister for Planning (First Respondent)
Secretary of the Department of Planning (Third Respondent)
Lismore City Council (Fourth Respondent – submitting)
The Plateau Group (TPG) Pty Ltd (Sixth Respondent –submitting)

Representation:

Counsel:

P Clay, SC with N Hammond, barrister (Applicant)
K Richardson, barrister (First and Third Respondents)

Solicitors:

Environment Defenders Office New South Wales (Applicant)
Department of Planning (First and Third Respondents)
Marsdens Law Group (Fourth Respondent)
Norton Rose Fulbright Australia (Sixth Respondent)

File Number(s):

40334 of 2014

Judgment

A: Introduction

1. This is a judicial review challenge to the validity of a plan made by way of an amendment (“Amendment 3”) to the Local Environmental Plan 2012 (“LEP”) for the City of Lismore, concerning,…