Vanmeld Pty Ltd v Fairfield City Council

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 1999
PARTIES :	VANMELD PTY LIMITED FAIRFIELD CITY COUNCIL THE MINISTER ADMINISTERING THE ENVIRONMENTAL PLANNING AND ASSESSMENT ACT 1979
JUDGMENT 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 APPEAL

CA 40420/96
LEC 40032/95

SPIGELMAN CJ
MEAGHER JA
POWELL JA

Friday 5 February 1999

VANMELD PTY LIMITED v FAIRFIELD CITY COUNCIL & ANOR

The 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…