Yadle Investments Pty Limited v Roads and Traffic Authority of NSW; Roads and Traffic Authority of NSW v The Minister for Planning

[1989] NSWLEC 211

Land and Environment Court

of New South Wales

CITATION:

Yadle Investments Pty Limited v Roads & Traffic Authority of NSW; Roads & Traffic Authority of NSW v The Minister for Planning & Ors [1989] NSWLEC 211

PARTIES:

APPLICANT
Yadle Investments Pty Ltd

RESPONDENT
Roads & Trafiic Authority of NSW

APPLICANT
Roads & Traffic Authority of NSW

FIRST RESPONDENT
The Minister for Planning

SECOND RESPONDENT
Coffs Habour City Council

THIRD RESPONDENT
Yadle Investments Pty Ltd

FILE NUMBER(S):

40039; 40150 of 1989

CORAM:

Stein J

KEY ISSUES:

:-

LEGISLATION CITED:

Environmental Planning and Assessment Act 1979

CASES CITED:

Church of Scientology v. Woodward ((1982) 154 CLR 25 at 55-56);
Woolworths Ltd. v. Bathurst City Council ((1987) 63 LGRA 55);
North Sydney Municipal Council v. Lycenko (Court of Appeal Unreported 15 November 1988)

DATES OF HEARING:

DATE OF JUDGMENT:

06/23/1989

LEGAL REPRESENTATIVES:

APPLICANT
Mr Young for Yale Investments
RESPONDENT
Mr Austin for the Council

JUDGMENT:

HIS HONOUR: By a Class 4 application filed in the Court on 16 February 1989 Yadle Investments Pty. Ltd. seeks a declaration that the Roads & Traffic Authority of New South Wales is bound to acquire the applicant's land (lot 75 Deposited Plan No. 262803 in the City of Coffs Harbour) pursuant to cl.15(2) and (3) of the City of Coffs Harbour Local Environmental Plan 1988. The applicant also seeks an order that the respondent take all necessary steps to obtain approval to the resumption of the land, and upon approval forthwith resume the said land.

On 6 June 1989 the Roads & Traffic Authority (RTA) lodged a Class 4 application seeking a declaration that cl.15 of the Coffs Harbour Local Environmental Plan 1988, in so far as it requires the Commissioner for Main Roads (of whom the applicant is the successor) to acquire land the subject of the plan, is void, and certain other declarations of invalidity of portions of cl.15 of the Local Environmental Plan. The respondents to this application are the Minister for Planning, the Coffs Harbour City Council and Yadle Investments Pty. Ltd.

The proceedings were consolidated and heard together on 16 June 1989. It is convenient to consider application No. 40150/89 first. Each of the respondents to this application contend that s.35 of the Environmental Planning and Assessment Act precludes the applicant RTA from now questioning the validity of the Local Environmental Plan in these proceedings.

The City of Coffs Harbour Local Environmental Plan 1988 was gazetted on 22 April 1988. Cl.15 of the Plan is in the following terms:-

"Acquisition of land

15. (1) This clause applies to land within Zones Nos 5, 6(b) and 7(f2).

(2) The owner of any land within a zone specified in Column 1 of the Table to this subclause may, by notice in writing, require the public authority specified opposite that land in Column 2 of the Table to acquire that land.

Column 1 Column 2

5 Special Uses - The Council (lettered "Local Government Purposes", and with a description of the particular purpose, on the map).

5 Special Uses - Minister for Education (lettered "School" on the map).

5 Special Uses - Commissioner for Main (lettered "Proposed Roads. Arterial Road" on the map).

6(b) Open Space - The council Proposed

7 (f2) Environmental Minister administering Protection - Coastal the Environmental Lands Acquisition. Planning and Assessment

Act 1979.

(3) On receipt of a notice referred to in subclause (2) the public authority concerned shall acquire that land.

(4) The council shall not grant consent to the development of land referred to in Column 1 unless it obtains concurrence of the authority listed opposite it in Column 2.

(5) In deciding whether to grant concurrence pursuant to subclause (4) the public authority concerned shall take into consideration the following matters:

(a) the imminence of development of the land for the purpose for which it was zoned;

(b) whether the proposed development will render the land unfit for that purpose;

(c) the cost of reinstatement of the land for that purpose;

(d) whether a refusal to grant concurrence will cause undue financial hardship to any owner, mortgagee or lessee of the land; and

(e) any other relevant circumstance."

Section 35 of the Environmental Planning and Assessment Act provides:-

"35. Validity of instruments. The validity of an environmental planning instrument shall not be questioned in any legal proceedings except those commenced in the Court by any person within 3 months of the date of its publication in the Gazette.

It is acknowledged that Yadle Investments' land is within Zone 5 Special Uses in the LEP and is reserved for "Proposed Arterial Road" in connection with proposed rerouting of the Pacific Highway. By letter dated 18 July 1988 Yadle Investments Pty. Ltd. gave notice in writing to the Commissioner for Main Roads requiring the public authority to acquire its land. The Roads & Traffic Authority, now the relevant public authority under the Plan, has not acquired the applicant's land in accordance with subclause (3) of cl.15. Indeed, it has indicated that it does not accept that it is bound by cl.15.

Mr. Hale, Counsel for the Minister for Planning, Mr. Austin for the Council and Mr. Young for Yadle Investments all submit that s.35 is a bar to the Roads and Traffic Authority's application to declare the plan invalid since the 3 months limitation expired well before the commencement of proceedings in the Court. Mr. Maston on behalf of the Roads & Traffic Authority submits that s.35 does not preclude challenges on the basis of excess of jurisdiction or manifest ultra vires. In examining this issue it is important to note that no allegation of bad faith is involved. Rather the allegation is that cl.15 of the LEP could not be made because the RTA did not give its concurrence to the provision pursuant to Regulation 16(2) to the Environmental Planning and Assessment Act.

Regulation 16(2) provides:-

"A draft local environmental plan or a local environmental plan shall not contain a provision reserving land for a purpose referred to in section 26(c) of the Act or contain a provision in respect of that reservation as required by Section 27 of the Act, unless the public authority responsible for the acquisition of that land has notified the council of its prior concurrence to that provision being included."

In the Church of Scientology v. Woodward ((1982) 154 CLR 25 at 55-56) Mason J., as he then was, said:-

"If Parliament intends to take the radical step of ousting judicial review then it is reasonable to suppose that it will express its intention with directness and clarity upon the topic, thereby taking the responsibility upon its own shoulders for that result rather than leaving the Court to spell it out from a series of provisions not specifically addressed to that question.

The approach of the courts to the construction and application of privative clauses is instructive. The privative clause is the conventional expression of the legislative intention that a decision shall not be challenged in the courts. Yet, notwithstanding the wide and strong language in which these clauses have been expressed, the courts have traditionally refused to recognize that they protect manifest jurisdictional errors or ultra vires acts."

Cripps C.J. considered s.104A of the Environmental Planning and Assessment Act (an analagous provision to s.35) in Woolworths Ltd. v. Bathurst City Council ((1987) 63 LGRA 55). In considering that section (at p.63) he stated:-

"In my opinion, s 104A would not preclude a challenge on the ground that the council acted in bad faith. It may not preclude a challenge where the consent is manifestly ultra vires or in excess of jurisdiction or the challenge is based on a breach of the rules of natural justice."

More recently in North Sydney Municipal Council v. Lycenko (Court of Appeal Unreported 15 November 1988) Mahoney J.A. (although dissenting on the principal issue) made certain observations on s.35 of the Act. The appeal concerned State Environmental Planning Policy 10 regarding the retention of low cost rental accommodation including boarding houses. His Honour referred to the constitutional significance of placing the validity of an instrument made at the initiative of a Minister beyond examination. He continued:-

"There are reasons why a planning instrument should not be open to attack for reasons which go to formalities and technicalities and not to be substance of what has been done. And if planning instruments may be set aside, for reasons which do not go to the substance of them, long after they have been made, public and private inconvenience may result. There are legislative provisions in other areas to ensure that inadvertent informalities or technical errors may not be relied on.

In the present case, s 35 purports to put beyond question any matter going to the validity of a planning instrument, and makes no distinction between defects of form and defects of substance. In the present case, the section would operate to place beyond question, after three months, the use of the Environmental Planning and Assessment Act for purposes which the Parliament, and those comprising it, might not think to have been within the powers granted by the Act."

In my opinion s.35 does not preclude a challenge to the validity of an environmental planning instrument after 3 months of its gazettal if the basis of the challenge is bad faith, manifest jurisdictional error or ultra vires. I understand manifest jurisdictional error or ultra vires to mean one which is readily understood or perceived by the eye. Such error must be evident and obvious. It must appear plainly on the face of the instrument.

When one applies the above test to the subject Local Environmental Plan it could not be concluded that cl.15 reveals a manifest jurisdictional error or ultra vires. On the face of the instrument the clause appears to be a perfectly valid exercise of power. In essence the case of the Roads & Traffic Authority alleges a procedural failure to comply with Regulation 16(2) in that it is submitted that it did not concur in the inclusion of the provision in the Plan. In my opinion the application of the RTA is caught by s.35. No bad faith or manifest excess of jurisdiction has been shown. Application No. 40150/89 must therefore be dismissed.

No other opposition being made by the Roads & Traffic Authority to Application No. 40039/89 I am satisfied that it is appropriate to make the Declaration sought in paragraph 1 thereof. The Minister for Planning intervened in this application for the limited purpose of arguing what order may be made consequent upon the making of the declaration. Counsel for Yadle Investments (Mr. Young) was taken by surprise and not ready to argue the point on 16 June 1989. This issue is therefore reserved to a date to be fixed for submissions.

I make the following orders:-

(1) Application 40150/89 is dismissed.

(2) In Application 40039/89 I declare that the respondent is bound to proceed to acquire the applicant's land (being Lot 75 in Deposited Plan 262803 in the City of Coffs Harbour Parish of Coff and County of Fitzroy being the land comprised in Certificate of Title Volume 14804 Folio 200) pursuant to Clause 15(2) and (3) of the City of Coffs Harbour Local Environmental Plan, 1988.

(3) Application 40039/89 stood over for further argument on a date to be fixed.