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Smith v Wyong Shire Council

Smith v Wyong Shire Council

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NEW SOUTH WALES COURT OF APPEAL

CITATION: Smith v Wyong Shire Council [2003] NSWCA 322

FILE NUMBER(S):
41067/02

HEARING DATE(S): 2 September 2003, 9 September 2003,

JUDGMENT DATE: 22/12/2003

PARTIES:
Darcy Smith
Wyong Shire Council & Another

JUDGMENT OF: Spigelman CJ Sheller JA Tobias JA

LOWER COURT JURISDICTION: Land & Environment Court

LOWER COURT FILE NUMBER(S): LEC 40034/01

LOWER COURT JUDICIAL OFFICER: Bignold, J

COUNSEL:
A: Mr P Tomasetti / Mr M Fraser
1R: Mr B J Preston SC / Ms J Jagot
2R: Mr M Leeming

SOLICITORS:
A: Wilshire Webb
1R: Abbott Tout
2R: Ms Christine Hanson

CATCHWORDS:
Environmental planning and development
Statutory interpretation
Whether plan inconsistent with Ministerial Direction under s117 of EPAA
Whether Council had power to prepare a plan inconsistent with Ministerial Direction
Whether s 66(b) EPAA breached and whether breach leads to invalidity of plan
Whether provision of plan severable

LEGISLATION CITED:
Environmental Planning and Assessment Act 1979, ss 36, 54(1), 55, 61, 65, 66(1), 68(4), 69, 70, 117
Interpretation Act 1987, s9(2)
Broadcasting Services Act 1992 (Cth), ss 35, 160

DECISION:
(a) Appeal allowed
(b) Set aside the orders made by Bignold J on 25 October 2002
(c) Declare that Wyong Local Environmental Plan 1991 (Amendment No. 118) published in the New South Wales Government Gazette No. 168 on 22 December 2000 is invalid to the extent to which it purports to amend Wyong Local Environmental Plan 1991 by zoning as 2(c) (Medium Density Residential Zone) land located at The Entrance and Long Jetty which is zoned 2(d) (High Density Residential Zone) in the said Plan
(d) The first respondent to pay the appellant's costs of the appeal and the proceedings in the Land and Environment Court

JUDGMENT:

IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA 41067/02
SPIGELMAN CJ
SHELLER JA
TOBIAS JA
Monday 22 December 2003

DARCY SMITH v WYONG SHIRE COUNCIL & ANOR

Judgment

SPIGELMAN CJ:I have read the judgment of Tobias JA in draft. His Honour sets out the facts, issues, submissions and statutory provisions. Subject to the following, I agree generally with his Honour’s reasons. I wish to state my own reasons on the issue of validity.
Amendment No 118 to Wyong Local Environmental Plan 1991 (“the Amendment”) was made by the Minister under s70 of the Environmental Planning and Assessment Act 1979 (“the Act”). The Appellant challenges the validity of the exercise of that power. Two alternative, but interconnected, bases for challenging the validity of the Amendment have been advanced.
Each basis depends on a conclusion that the Amendment failed to comply with a Direction given by the Minister pursuant to s117(2). The parties accepted that the Direction in G9(iv)(a) of the General Directions, quoted by Tobias JA, was a “principle” within the meaning of s117(2)(a), which I set out below.
The Appellant submitted that each of the provisions of the Amendment which down-zoned Residential 2(d) land to Residential 2(c) (by the amended map) and imposed a height restriction (by new clauses 42B and…

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: [2003] NSWCA 322
Decision Date: 22 December 2003

CaseChat Overview and Summary

The appeal concerned the validity of Wyong Local Environmental Plan 1991 (Amendment No. 118), which purported to rezone certain land in The Entrance and Long Jetty from a High Density Residential Zone (2(d)) to a Medium Density Residential Zone (2(c)). The appellant, the registered proprietor of land affected by this rezoning, had previously sought to develop his property for high-density residential purposes under the original 2(d) zoning. The primary judge had dismissed the appellant's application, but the appellant sought to argue a new ground of invalidity on appeal, contending that the amending LEP was invalid because the draft plan prepared by Wyong Shire Council was inconsistent with a Ministerial Direction issued under section 117(2) of the Environmental Planning and Assessment Act 1979 (EPAA).

The central legal issues before the court were whether the Council had the power to prepare a local environmental plan inconsistent with a Ministerial Direction under section 117(2) of the EPAA, and if so, whether such inconsistency rendered the plan invalid. The court was also required to consider whether a specific provision of the plan was severable, and if the breach of section 66(b) of the EPAA, which relates to the exhibition of draft plans, would lead to the invalidity of the plan.

The court allowed the appeal, finding that the Council did not have the power to prepare a draft local environmental plan that was inconsistent with a Ministerial Direction under section 117(2) of the EPAA, as the Council was bound by such directions. The court reasoned that the amending LEP was invalid to the extent that it purported to rezone the land from 2(d) to 2(c) because this action was inconsistent with the relevant Ministerial Direction. The court further determined that the provision of the plan was not severable and that the breach of section 66(b) of the EPAA, concerning the exhibition of the draft plan, also contributed to its invalidity.

Consequently, the court set aside the orders of the primary judge and declared Wyong Local Environmental Plan 1991 (Amendment No. 118) invalid in so far as it rezoned the specified land from a 2(d) zone to a 2(c) zone. The Council was ordered to pay the appellant's costs of the appeal and the proceedings in the Land and Environment Court.

Orders

Orders of the court

(a) Appeal allowed

(b) Set aside the orders made by Bignold J on 25 October 2002

(c) Declare that Wyong Local Environmental Plan 1991 (Amendment No. 118) published in the New South Wales Government Gazette No. 168 on 22 December 2000 is invalid to the extent to which it purports to amend Wyong Local Environmental Plan 1991 by zoning as 2(c) (Medium Density Residential Zone) land located at The Entrance and Long Jetty which is zoned 2(d) (High Density Residential Zone) in the said Plan

(d) The first respondent to pay the appellant's costs of the appeal and the proceedings in the Land and Environment Court

Background

Background to the litigation

The application was heard by Bignold J who on 25 October 2002 dismissed the application with costs: (2002) 123 LGERA 141. That decision is the subject of the present appeal to this Court. In the course of the hearing, the appellant sought leave to argue a ground of invalidity not argued before the primary judge. It was contended that the amending LEP was invalid because the draft local environmental plan (the draft plan) prepared by the first respondent (the Council) pursuant to s 54 of the Act was itself invalid as it was prepared in disconformity with a relevant direction given by the Minister under s 117(2) of the Act by which the Council was bound.The background facts The appellant is the registered proprietor of land fronting Toowoon Bay Road and Kitchener Road, Long Jetty (the property), made up of 6 allotments, which he had amalgamated over a period of several years. Since 15 February 1991, the date upon which Wyong Local Environmental Plan (1991) (the 1991 LEP) was published in the Government Gazette and took effect, the property had been classified thereunder as within Zone No. 2(d) (High Density Residential Zone) (the 2(d) zone). There were only two areas of land within The Entrance/Long Jetty zoned 2(d) under the 1991 LEP. The first was an area of land bordered by Toowoon Bay, Kitchener and Archibald Roads comprising approximately one half of the block bounded by those roads and Fraser Road, made up of approximately 16 allotments (Area A). The property comprised approximately one half of Area A. The second was an area generally bounded by Ocean Parade, Short Street, Fairport Avenue and Denning Street, comprising approximately 60 allotments (although some of these may, like the property, have been amalgamated into single holdings) (Area B). Area B was approximately 4 times the size of Area A. The primary objective of the 2(d) zone under the 1991 LEP was:“to allow for high density residential development in suitable locations.”The 1991 LEP contained no relevant development standards applicable to land within the 2(d) zone. In particular, it contained neither density nor height restrictions for development within that zone. As the objectives of the zone indicated, it was intended for high-density residential development. Although clause 42C of the 1991 LEP referred to a Building Height Map which controlled the height of buildings within The Entrance town centre, that map did not apply to either Areas A or B. Although there was also a floor space ratio restriction with respect to a building erected in Zone 3(c) where not used for residential purposes, there was no such restriction with respect to residential development within or without the 3(c) zone. In particular, there was no such restriction within the 2(d) zone. Accordingly, the permissible residential density within that zone was at large and subject only to the merit considerations referred to in s 79C of the Act. In May 2000, the appellant lodged with the Council a development application to construct a 14 storey residential flat development containing 199 apartments. That development significantly exceeded 12 metres in height (the maximum now permissible on the property under the amending LEP), but the appellant asserted that it was consistent with the requirements for (including the objectives of) the 2(d) zone as they were under the 1991 LEP (before it was amended by the amending LEP).

Evidence

Evidence Before The Court

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Decision

Reasons for decision

SPIGELMAN CJ

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Ratio Decidendi

Legal Principle Established

Established by: SPIGELMAN CJ

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