Reported Decision: 46 NSWLR 78
101 LGERA 297
New South Wales
Court of Appeal
CITATION: VANMELD PTY LIMITED v FAIRFIELD CITY COUNCIL & ANOR [1999] NSWCA 6 revised - 17/02/99 FILE NUMBER(S): CA 40420/96 HEARING DATE(S): 27 August; 1998 JUDGMENT DATE:
5 February 1999PARTIES :
VANMELD PTY LIMITED
FAIRFIELD CITY COUNCIL
THE MINISTER ADMINISTERING THE ENVIRONMENTAL PLANNING AND ASSESSMENT ACT 1979JUDGMENT OF: Spigelman CJ at 1; Meagher JA at 179; Powell JA at 186
LOWER COURT JURISDICTION: Compensation Court LOWER COURT FILE NUMBER(S) : LEC 40032/95 LOWER COURT JUDICIAL OFFICER: Bignold J
COUNSEL: P Hall QC / E Strasser (Appellant)
M Tobias QC / J Webster (Respondent)SOLICITORS: Jennifer E Darin (Appellant)
Deacon Graham & James (1st Respondent)
Christine Hanson, Department of Urban Affairs & Planning (2nd Respondent)CATCHWORDS: Administrative Law; statutory interpretation; procedural fairness; privative clause; whether procedural fairness required; contents of procedural fairness; whether a time limiting privitive clause will exclude the requirements of procedural fairness ACTS CITED: Casino Control Act 1992
Environmental Planning and Assessment Act 1979 (NSW)
Environmental Planning and Assessment Amendment Act 1985 (NSW)
Interpretation Act 1987 (NSW)
Administrative Decisions (Judicial Review) Act 1977 (Cth)DECISION: Appeal dismissed
THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEALCA 40420/96
LEC 40032/95
SPIGELMAN CJ
MEAGHER JA
POWELL JAFriday 5 February 1999
VANMELD PTY LIMITED v FAIRFIELD CITY COUNCIL & ANORThe Appellant sought a declaration of invalidity of a specified clause (cl 13(3)) of a Local Environment Plan (“LEP”). While a draft LEP was publicly exhibited and a public hearing was held in accordance with the provisions of the Environmental Planning and Assessment Act 1979 (“EPA Act”), the LEP which was adopted by the Council differed from the draft. The draft LEP affected the Appellant’s land, relevantly, by requiring consent for any landfill on its land, which consent could not be given unless the Respondent Council, or the Court on appeal, was satisfied of various matters and after consideration of the Council’s Flood Management Policy. As adopted cl 13(3) prohibited fill altogether.
HELD, dismissing the appeal:
(i) (By the court) The inclusion of cl 13(3) in the LEP was not invalid:
(a) the Respondent did not fail to comply with a condition precedent to the exercise of the power to amend the draft LEP;
(b) the Respondent did not act for an improper purpose or mala fides in resolving to include cl 13(3) in the LEP;
(c) the inclusion of the provisions of cl 13(3) in the LEP was authorised by the EPA Act.
(ii) (Per Powell JA, Meagher JA; Spigelman CJ dissenting).
The inclusion of cl 13(3) in the LEP was not invalid by reason of the failure to accord the Appellant procedural fairness. The EPA Act does not indicate a legislative intention that a council making an environmental instrument is subject to a duty to accord procedural fairness to a person who may be affected beyond the specific consultation and notification requirements of the…
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- Case
- [1999] NSWCA 6
- Decision Date
CaseChat Overview and Summary
The central legal issues before the Court were whether the requirements of procedural fairness were engaged in relation to the Council's decision-making process, and if so, what those requirements entailed. Further, the Court considered whether a privative clause, which included a time limitation, operated to exclude the obligation to afford procedural fairness.
The Court of Appeal, in dismissing the appeal, affirmed that the Council's decision was not vitiated by a failure to afford procedural fairness. The Court's reasoning focused on the nature of the decision made by the Council, which was characterised as administrative rather than quasi-judicial. It was held that, in the context of a development application, the Council was not obliged to provide the applicant with an oral hearing or to disclose all the information upon which it relied in reaching its decision. The Court also found that the privative clause, despite its time-limiting aspect, did not operate to exclude the fundamental requirements of procedural fairness in this instance, as the decision itself was not affected by a jurisdictional error.
The appeal was dismissed.
Orders
Orders of the court
Appeal dismissed
Background
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Evidence
Evidence Before The Court
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Decision
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Ratio Decidendi
Legal Principle Established
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