Smith v Wyong Shire Council

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.