Smith v Wyong Shire Council - [2002] NSWLEC 173

Reported Decision: 123 LGERA 141

Land and Environment Court

of New South Wales

CITATION: Smith v Wyong Shire Council and Anor. [2002] NSWLEC 173

PARTIES:
APPLICANT:
Darcy Smith
RESPONDENTS:
Wyong Shire Council and Anor.

FILE NUMBER(S): 40034 of 2001

CORAM: Bignold J

KEY ISSUES: Judicial Review :- Alleged invalidity of LEP Amendment for breaches by Council in procedures for public exhibition of draft plan-allegations of factual error in Report submitted to Minister.

LEGISLATION CITED: Environmental Planning and Assessment Act 1979, ss 66, 68, 69 and 70

CASES CITED: Asquith v Minister for Planning (1989) NSWLEC 104);
Belongil Progress Association Inc v Byron Shire Council (1999) 106 LGERA;
Byron Bay Everglades Resort Pty Ltd v Byron Shire Council (2000) NSWLEC 81;
Jessop v W R Willcocks Pty Ltd (1988) NSWLEC 106;
Legal and General Life of Australia Ltd v North Sydney Council (1990) 69 LGRA 201;
Litevale Pty Ltd v Lismore City Council (1997) 96LGERA 91;
Monaro Acclimatisation County v Minister for Planning (1989) NSWLEC 13;
Premier State Developments Pty Ltd v North Sydney Council (1999) 104 LGERA 215);
Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR 355;
Scurr v Brisbane City Council (1973) 133 CLR 242;
Strathfield Municipal Council v Poynting (2001) 116 LGERA 319;
Tasker v Fullwood (1978) 1 NSWLR 20;
Vanmeld Pty Ltd v Fairfield City Council (1999) 46 NSWLR 78;
Timbarra Protection Coalition Inc v Ross Mining NL (1999) 46 NSWLR 55

DATES OF HEARING: 17/06/02, 21/06/02, 05/07/02, 05/08/02

DATE OF JUDGMENT:
10/25/2002

LEGAL REPRESENTATIVES:

APPLICANT:
Mr P Tomasetti, Barrister
SOLICITORS
Wilshire Webb
RESPONDENTS:
1st Respondent Mr B Preston SC
2nd Respondent Submitting Appearance
SOLICITORS
1st Respondent Abbott Tout
2nd Respondent Submitting appearance

JUDGMENT:

NEW SOUTH WALES

Matter No . 40034 of 2001

Coram : Bignold J

25 October 2002

DARCY SMITH

Applicant

WYONG SHIRE COUNCIL

Respondent

MINISTER FOR URBAN AFFAIRS AND PLANNING

Respondent

JUDGMENT

A. INTRODUCTION

1. These are class 4 proceedings in which the Applicant challenges the validity of Wyong Local Environmental Plan 1991 (Amendment No 118) (the Amending LEP) which was made by the Minister pursuant to the Environmental Planning and Assessment Act 1979, s 70 (the EP&A Act) on 17 December 2000 and was published in Government Gazette No 168 of 22 December 2000 upon which date it took effect by virtue of s 34(5) of that Act. The Amending LEP amended Wyong Local Environmental Plan 1991 (the LEP) by inter alia rezoning designated parcels of land “to achieve greater densities” (cl 2(a)) but it also introduced “more stringent height controls on development at The Entrance and Long Jetty” (cl 2(a)).

2. The class 4 proceedings were commenced on 15 March 2001 and hence were commenced within the limitation period of three months prescribed by the EP&A Act, s 35.

3. The Applicant owns land fronting Toowoon Bay Road, Long Jetty which was zoned 2(d) High Density Residential under the LEP. That land was “down zoned” to the…

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: [2002] NSWLEC 173
Decision Date: 10/25/2002

CaseChat Overview and Summary

The applicant, Darcy Smith, challenged the validity of Wyong Local Environmental Plan 1991 (Amendment No 118) (the Amending LEP) which was made by the Minister pursuant to the Environmental Planning and Assessment Act 1979, s 70 on 17 December 2000. The Amending LEP, which came into force on 22 December 2000, introduced more stringent height controls on development at The Entrance and Long Jetty. The applicant’s land fronting Toowoon Bay Road, Long Jetty, which was zoned 2(d) High Density Residential under the LEP, was “down zoned” to the Medium Density Residential 2(c) Zone by the Amending LEP. The applicant’s development application for a high rise residential development of the applicant’s land at Long Jetty was refused by the Wyong Shire Council on the ground that the proposed development was absolutely prohibited by the provisions of the Amending LEP. The applicant alleged that the Amending LEP was invalid on the following grounds: (i) the Wyong Shire Council breached its statutory obligations under ss 66 and 68 by not publicly exhibiting with the draft local environmental plan copies of SEPP No 1, SEPP No 6, or the s 117 Direction G9, or a statement to the effect that the plan “substantially governs the content and operation of the draft plan”; and (ii) the Minister failed to take into account relevant considerations in exercising his power under s 70 because the Director-General’s report submitted to the Minister pursuant to s 69 was factually incorrect and did not advise the Minister of the inconsistency between the draft plan and SEPP No 1 and s 117 Direction G9 or whether that inconsistency was justifiable in the circumstances. The Wyong Shire Council denied the allegations and submitted that the statutory obligations imposed by ss 66 and 68 did not apply in the present case because the relevant planning documents did not “substantially govern the content and operation of the draft plan”. The Council also submitted that the Director-General’s report to the Minister satisfied the requirements of s 69 and that the Minister’s failure to make the Amending LEP was not based upon the Director-General’s report but rather upon his independent assessment of the draft plan. The Court found that the Council did not breach its statutory obligations under ss 66 and 68 because the planning documents did not “substantially govern the content and operation of the draft plan”. The Court also found that the Director-General’s report to the Minister satisfied the requirements of s 69 and that the Minister’s failure to make the Amending LEP was not based upon the Director-General’s report but rather upon his independent assessment of the draft plan. The Court concluded that the Amending LEP was valid and dismissed the application with costs.

Orders