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nsw_caselaw:178fd5962177b5b782d5c74c:352 | nsw_caselaw:178fd5962177b5b782d5c74c | decision | new_south_wales | nsw_caselaw | text/html | 2021-05-20 00:00:00 | Williams v Fraser [2021] NSWSC 416 | https://www.caselaw.nsw.gov.au/decision/178fd5962177b5b782d5c74c | 2024-05-26T15:06:20.551301+10:00 | 311. Hailee Williams’ claim is currently made upon the basis that she continues to remain in a relationship with Andrew Rae. If she were to live alone, her care needs would correspondingly increase. If she were to injure herself, she would require a heightened level of attendant care, with tasks such as dressing, bathing, transfers, ambulating, medical attendances, and some additional domestic assistance. | 352 |
nsw_caselaw:178fd5962177b5b782d5c74c:353 | nsw_caselaw:178fd5962177b5b782d5c74c | decision | new_south_wales | nsw_caselaw | text/html | 2021-05-20 00:00:00 | Williams v Fraser [2021] NSWSC 416 | https://www.caselaw.nsw.gov.au/decision/178fd5962177b5b782d5c74c | 2024-05-26T15:06:20.551301+10:00 | 312. Hailee Williams conceded properly that the amount, if any, of increased future care cannot be determined with any certainty. However, she maintained that provision is required in order adequately to compensate her for contingencies. An assessment needs to be made of the likelihood that she may be injured in a way that increases her future care needs. Hailee Williams maintains that she has established a propensity to fall and injure herself. She submitted that the award of a sum by way of a buffer is therefore reasonable to take account of matters that are incapable of prediction with any degree of certainty, and that this should be done upon the basis that she will require an additional five hours of daily assistance. This claim is promoted and discounted on the basis that there is a 70 percent chance this will not occur. | 353 |
nsw_caselaw:178fd5962177b5b782d5c74c:354 | nsw_caselaw:178fd5962177b5b782d5c74c | decision | new_south_wales | nsw_caselaw | text/html | 2021-05-20 00:00:00 | Williams v Fraser [2021] NSWSC 416 | https://www.caselaw.nsw.gov.au/decision/178fd5962177b5b782d5c74c | 2024-05-26T15:06:20.551301+10:00 | 313. Accordingly, based on a 70 per cent discount, Hailee Williams claims a buffer calculated at the rate of 5 hours per day attendant care and domestic assistance or 35 hours per week, at $55 per hour amounting to $1,925 per week x 1,017.5 (5% discount rate) or a total of $1,958,687.50. After a discount of 70 percent, the total buffer claimed is $587,606.25. | 354 |
nsw_caselaw:178fd5962177b5b782d5c74c:355 | nsw_caselaw:178fd5962177b5b782d5c74c | decision | new_south_wales | nsw_caselaw | text/html | 2021-05-20 00:00:00 | Williams v Fraser [2021] NSWSC 416 | https://www.caselaw.nsw.gov.au/decision/178fd5962177b5b782d5c74c | 2024-05-26T15:06:20.551301+10:00 | 314. I do not consider that this head of claim is maintainable. Once again, anything in the future is possible. The claim for an economic cushion is based upon the unestablished proposition that any change in Hailee Williams’ circumstances will be disadvantageous. There must logically be a corresponding proposition to the opposite effect. An economic buffer should in my view apply in circumstances where a future need exists but where the amount to compensate for it cannot be quantified because of uncertainties and unpredictable events. The sum allowed for future care already takes into account these matters in a way that reflects a balance between the competing positions of the parties. The sum claimed under the present head would in my view amount to double, or at least overlapping, compensation for the same loss. | 355 |
nsw_caselaw:178fd5962177b5b782d5c74c:356 | nsw_caselaw:178fd5962177b5b782d5c74c | decision | new_south_wales | nsw_caselaw | text/html | 2021-05-20 00:00:00 | Williams v Fraser [2021] NSWSC 416 | https://www.caselaw.nsw.gov.au/decision/178fd5962177b5b782d5c74c | 2024-05-26T15:06:20.551301+10:00 | Conclusion
315. Hailee Williams’ claim in summary can be seen in the following table:
Non-economic loss at 85% $559,500.00
Past out of pocket expenses $110,254.70
Past economic loss $201,699.05
Future economic loss $1,396,078.08
Past gratuitous care $162,786.00
Future care $1,355,144.00
Buffer for future care $587,606.25
Equipment expenses $67,546.00
Medical treatments $220,064.83
Medical investigations $42,008.25
Medication costs $115,185.63
Medical Marijuana $467,040.00
Total $5,284,912.79
316. By reason of the views I have expressed, Hailee Williams’ loss and damage must be quantified differently to the schedule in the preceding paragraph. In the event that it becomes necessary, I will invite the parties to provide me with a corresponding schedule that substitutes the appropriate amounts calculated by reference to my conclusions. | 356 |
nsw_caselaw:178fd5962177b5b782d5c74c:357 | nsw_caselaw:178fd5962177b5b782d5c74c | decision | new_south_wales | nsw_caselaw | text/html | 2021-05-20 00:00:00 | Williams v Fraser [2021] NSWSC 416 | https://www.caselaw.nsw.gov.au/decision/178fd5962177b5b782d5c74c | 2024-05-26T15:06:20.551301+10:00 | Orders
317. I will in the circumstances make the following orders:
1. Judgment for the defendants.
2. Costs reserved.
**********
Amendments
02 June 2021 -
Date corrected in [130], [153] and [199]
DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.
Decision last updated: 02 June 2021 | 357 |
nsw_caselaw:54a6351a3004de94513d8af1:0 | nsw_caselaw:54a6351a3004de94513d8af1 | decision | new_south_wales | nsw_caselaw | text/html | 2011-07-28 00:00:00 | Friends of Turramurra Inc v Minister for Planning [2011] NSWLEC 128 | https://www.caselaw.nsw.gov.au/decision/54a6351a3004de94513d8af1 | 2024-05-26T15:06:35.100027+10:00 | Land and Environment Court
New South Wales | 0 |
nsw_caselaw:54a6351a3004de94513d8af1:1 | nsw_caselaw:54a6351a3004de94513d8af1 | decision | new_south_wales | nsw_caselaw | text/html | 2011-07-28 00:00:00 | Friends of Turramurra Inc v Minister for Planning [2011] NSWLEC 128 | https://www.caselaw.nsw.gov.au/decision/54a6351a3004de94513d8af1 | 2024-05-26T15:06:35.100027+10:00 | Medium Neutral Citation: Friends of Turramurra Inc v Minister for Planning [2011] NSWLEC 128
Hearing dates: 29 - 30 November 2010, 1 - 2 December 2010, 7 December 2010
Decision date: 28 July 2011
Jurisdiction: Class 4
Before: Craig J
Decision: 1. Declare that Ku-ring-gai Local Environmental Plan (Town Centres) 2010 published on the NSW legislation website on 25 May 2010 has been made contrary to the provisions of Division 4 of Part 3 of the Environmental Planning and Assessment Act 1979 and is thereby of no legal force or effect.
2. Costs reserved.
3. Any application for costs is to be made by notice of motion filed within 7 days of today's date.
4. Exhibits may be returned. | 1 |
nsw_caselaw:54a6351a3004de94513d8af1:2 | nsw_caselaw:54a6351a3004de94513d8af1 | decision | new_south_wales | nsw_caselaw | text/html | 2011-07-28 00:00:00 | Friends of Turramurra Inc v Minister for Planning [2011] NSWLEC 128 | https://www.caselaw.nsw.gov.au/decision/54a6351a3004de94513d8af1 | 2024-05-26T15:06:35.100027+10:00 | Catchwords: ADMINISTRATIVE LAW - judicial review - challenge to the validity of Ku-ring-gai Local Environmental Plan (Town Centres) 2010 - delegation to planning Panel to issue certificate under s 65 of the Environmental Planning and Assessment Act 1979 ("EPA Act") - no certificate issued by Panel - no invalidity attending absence of certificate - exhibition of draft instrument under s 66 of the EPA Act - diverse locations to view documents in addition to the location of the "statutory exhibition" - misleading exhibition material - need to consider the "interested reader" of exhibition material - alteration by both the Panel and the Minister of the exhibited draft instrument following exhibition - draft planning instrument altered in important respects - aggregate affect of all alterations - not the product of the process for plan preparation required by Part 3, Division 4 of the EPA Act - consideration of cl 10 of State Environmental Planning Policy No 19 - Bushland in Urban Areas - | 2 |
nsw_caselaw:54a6351a3004de94513d8af1:3 | nsw_caselaw:54a6351a3004de94513d8af1 | decision | new_south_wales | nsw_caselaw | text/html | 2011-07-28 00:00:00 | Friends of Turramurra Inc v Minister for Planning [2011] NSWLEC 128 | https://www.caselaw.nsw.gov.au/decision/54a6351a3004de94513d8af1 | 2024-05-26T15:06:35.100027+10:00 | substantive consideration of the requirements - validity of s 69 report prepared by Panel as delegate of the Director-General - impact of planning changes upon Council-owned land - Guidelines for Councils using delegated powers to prepare LEPs involving land owned or controlled by Council ("the Guidelines") - need for land to be classified as operational land before disclosure mandated by Guidelines - substantive alteration to draft instrument without re-exhibition of the altered draft - instrument of no legal force and effect | 3 |
nsw_caselaw:54a6351a3004de94513d8af1:4 | nsw_caselaw:54a6351a3004de94513d8af1 | decision | new_south_wales | nsw_caselaw | text/html | 2011-07-28 00:00:00 | Friends of Turramurra Inc v Minister for Planning [2011] NSWLEC 128 | https://www.caselaw.nsw.gov.au/decision/54a6351a3004de94513d8af1 | 2024-05-26T15:06:35.100027+10:00 | Legislation Cited: Environmental Planning and Assessment Act 1979 | 4 |
nsw_caselaw:54a6351a3004de94513d8af1:5 | nsw_caselaw:54a6351a3004de94513d8af1 | decision | new_south_wales | nsw_caselaw | text/html | 2011-07-28 00:00:00 | Friends of Turramurra Inc v Minister for Planning [2011] NSWLEC 128 | https://www.caselaw.nsw.gov.au/decision/54a6351a3004de94513d8af1 | 2024-05-26T15:06:35.100027+10:00 | Environmental Planning and Assessment Amendment (Infrastructure and Other Planning Reform) Act 2005
Environmental Planning and Assessment Regulation 2000
Interpretation Act 1987
Environmental Planning and Assessment (Ku-ring-gai Planning Panel) Order 2008
Ku-ring-gai Local Environmental Plan (Town Centres) 2010
Local Government Act 1993
State Environmental Planning Policy No 1- Development Standards
State Environmental Planning Policy No 19 - Bushland in Urban Areas
State Environmental Planning Policy (Infrastructure) 2007
State Environmental Planning Policy (Exempt and Complying Development Codes) 2008 | 5 |
nsw_caselaw:54a6351a3004de94513d8af1:6 | nsw_caselaw:54a6351a3004de94513d8af1 | decision | new_south_wales | nsw_caselaw | text/html | 2011-07-28 00:00:00 | Friends of Turramurra Inc v Minister for Planning [2011] NSWLEC 128 | https://www.caselaw.nsw.gov.au/decision/54a6351a3004de94513d8af1 | 2024-05-26T15:06:35.100027+10:00 | Threatened Species Conservation Act 1995
Cases Cited: Bryan v Lane Cove Council [2007] NSWLEC 586; (2007) 158 LGERA 390
Calleja v Botany Bay City Council [2005] NSWCA 337; (2005) 142 LGERA 104
Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation [1981] HCA 26; (1981) 147 CLR 297
Curac v Shoalhaven City Council (1993) 81 LGERA 124
El Cheikh v Hurstville Council [2002] NSWCA 173; (2002) 121 LGERA 293
Gales Holdings Pty Ltd v Minister for Infrastructure and Planning [2006] NSWCA 388; (2006) 69 NSWLR 156
Hatton v Beaumont [1977] 2 NSWLR 211
Hecar Investments No 6 Pty Ltd v Lake Macquarie Municipal Council (1984) 53 LGRA 322
Minister for Immigration and Citizenship v SZJGV [2009] HCA 40; (2009) 259 ALR 595 | 6 |
nsw_caselaw:54a6351a3004de94513d8af1:7 | nsw_caselaw:54a6351a3004de94513d8af1 | decision | new_south_wales | nsw_caselaw | text/html | 2011-07-28 00:00:00 | Friends of Turramurra Inc v Minister for Planning [2011] NSWLEC 128 | https://www.caselaw.nsw.gov.au/decision/54a6351a3004de94513d8af1 | 2024-05-26T15:06:35.100027+10:00 | Homeworld Ballina Pty Ltd v Ballina Shire Council [2010] NSWCA 65; (2010) 172 LGERA 211
John Brown Lenton & Co Pty Ltd v Minister for Urban Affairs and Planning [1999]
NSWLEC 213; (1999) 106 LGERA 150
Ku-ring-gai Council v Minister for Planning [2008] NSWLEC 174
Leichhardt Council v Minister for Planning (No 2) (1995) 87 LGERA 78
Mikaelian v CSIRO [1999] FCA 610; (1999) 163 ALR 172
Project Blue Sky v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355
Smith v Wyong Shire Council [2003] NSWCA 322; (2003) 132 LGERA 148
Weal v Bathurst City Council [2000] NSWCA 88; (2000) 111 LGERA 181
Wehbe v Pittwater Council [2007] NSWLEC 827; (2007) 156 LGERA 446 | 7 |
nsw_caselaw:54a6351a3004de94513d8af1:8 | nsw_caselaw:54a6351a3004de94513d8af1 | decision | new_south_wales | nsw_caselaw | text/html | 2011-07-28 00:00:00 | Friends of Turramurra Inc v Minister for Planning [2011] NSWLEC 128 | https://www.caselaw.nsw.gov.au/decision/54a6351a3004de94513d8af1 | 2024-05-26T15:06:35.100027+10:00 | Vanmeld Pty Ltd v Fairfield City Council [1999] NSWCA 6; (1999) 46 NSWLR 78
Zhang v Canterbury City Council [2001] NSWCA 167; (2001) 51 NSWLR 589
Category: Principal judgment
Parties: Friends of Turramurra Inc (Applicant)
Minister For Planning (First Respondent)
Ku-ring-gai Planning Panel (Second Respondent)
Representation: COUNSEL
Mr P W Larkin with Mr R D White (Applicant)
Ms C E Adamson SC with Mr J Hutton (Respondent)
SOLICITORS
Environmental Defender's Office (Applicant)
Department of Planning (Respondent)
File Number(s): 40672 of 2010 | 8 |
nsw_caselaw:54a6351a3004de94513d8af1:9 | nsw_caselaw:54a6351a3004de94513d8af1 | decision | new_south_wales | nsw_caselaw | text/html | 2011-07-28 00:00:00 | Friends of Turramurra Inc v Minister for Planning [2011] NSWLEC 128 | https://www.caselaw.nsw.gov.au/decision/54a6351a3004de94513d8af1 | 2024-05-26T15:06:35.100027+10:00 | Judgment
1The attempts by central government to impose planning controls, allowing higher density development in parts of the Ku-ring-gai local government area, have been controversial in recent years. In 2004, a direction was given to Ku-ring-gai Council ( the Council ) on behalf of the Minister requiring it to prepare a draft local environmental plan in accordance with stated principles intended to achieve the objective of higher density development. | 9 |
nsw_caselaw:54a6351a3004de94513d8af1:10 | nsw_caselaw:54a6351a3004de94513d8af1 | decision | new_south_wales | nsw_caselaw | text/html | 2011-07-28 00:00:00 | Friends of Turramurra Inc v Minister for Planning [2011] NSWLEC 128 | https://www.caselaw.nsw.gov.au/decision/54a6351a3004de94513d8af1 | 2024-05-26T15:06:35.100027+10:00 | 2By early 2008 that direction had not, according to the Minister, been satisfactorily addressed. In an endeavour to end the controversy and more expeditiously achieve planning controls that reflected State government policy, a planning panel, assigned the corporate name "Ku-ring-gai Planning Panel" ( the Panel ), was appointed by the Minister to carry out nominated planning functions of the Council. This appointment occurred in March 2008. The Council's challenge to the validity of the Minister's action in so doing was unsuccessful ( Ku-ring-gai Council v Minister for Planning [2008] NSWLEC 174).
3Nonetheless, the controversy continues. On 25 May 2010, the Minister made Ku-ring-gai Local Environmental Plan (Town Centres) 2010 ( the Centres LEP ). The Centres LEP was made consequent upon preparation by the Panel of the instrument in draft and submission by it to the Minister. It is the validity of the Centres LEP that is challenged in these proceedings. | 10 |
nsw_caselaw:54a6351a3004de94513d8af1:11 | nsw_caselaw:54a6351a3004de94513d8af1 | decision | new_south_wales | nsw_caselaw | text/html | 2011-07-28 00:00:00 | Friends of Turramurra Inc v Minister for Planning [2011] NSWLEC 128 | https://www.caselaw.nsw.gov.au/decision/54a6351a3004de94513d8af1 | 2024-05-26T15:06:35.100027+10:00 | 4Invalidity of the Centres LEP is claimed on six grounds. It is convenient to identify these grounds by summarising them in the order in which they appear in the applicant's amended points of claim. They are -
(i)no valid certificate was issued in accordance with s 65 of the Environmental Planning and Assessment Act 1979 ( the EPA Act ) enabling exhibition of the draft Centres LEP;
(ii)the exhibition of the draft Centres LEP was "incomplete, invalid and misleading" and, as such, it did not conform to the requirements of s 66 of the EPA Act;
(iii)substantial amendments were made by the Panel to the draft centres LEP following exhibition of the instrument but the draft instrument, as amended by the Panel, was not re-advertised before being made. In that circumstance, the Centres LEP was not the product of the processes ordained by Div 4 of Pt 3 of the EPA Act for the making of a local environmental plan; | 11 |
nsw_caselaw:54a6351a3004de94513d8af1:12 | nsw_caselaw:54a6351a3004de94513d8af1 | decision | new_south_wales | nsw_caselaw | text/html | 2011-07-28 00:00:00 | Friends of Turramurra Inc v Minister for Planning [2011] NSWLEC 128 | https://www.caselaw.nsw.gov.au/decision/54a6351a3004de94513d8af1 | 2024-05-26T15:06:35.100027+10:00 | (iv)when preparing the draft Centres LEP, the Panel failed to consider cl 10 of State Environmental Planning Policy No 19 - Bushland in Urban Areas ( SEPP 19 );
(v)no valid report was furnished to the Minister as was required to be done by s 69 of the EPA Act; and
(vi)substantial amendments were made by the Minister to the draft Centres LEP submitted to him by the Panel but the draft instrument, as amended by him, was not re-advertised before being made. In that circumstance, the Centres LEP was not the product of processes ordained by Div 4 of Pt 3 of the EPA Act for the making of a local environmental plan. | 12 |
nsw_caselaw:54a6351a3004de94513d8af1:13 | nsw_caselaw:54a6351a3004de94513d8af1 | decision | new_south_wales | nsw_caselaw | text/html | 2011-07-28 00:00:00 | Friends of Turramurra Inc v Minister for Planning [2011] NSWLEC 128 | https://www.caselaw.nsw.gov.au/decision/54a6351a3004de94513d8af1 | 2024-05-26T15:06:35.100027+10:00 | 5Some of these grounds are sought to be supported on alternate bases. Further, while grounds (i) and (v) have one basis of challenge in common, generally both the statutory provisions and facts relied upon to support each ground are different. This will necessitate separate consideration of those statutory provisions and facts as each ground is considered. However, it is appropriate to identify general background facts so that each ground of challenge can be considered in context. | 13 |
nsw_caselaw:54a6351a3004de94513d8af1:14 | nsw_caselaw:54a6351a3004de94513d8af1 | decision | new_south_wales | nsw_caselaw | text/html | 2011-07-28 00:00:00 | Friends of Turramurra Inc v Minister for Planning [2011] NSWLEC 128 | https://www.caselaw.nsw.gov.au/decision/54a6351a3004de94513d8af1 | 2024-05-26T15:06:35.100027+10:00 | Background
6On 27 May 2004, the Minister Assisting the Minister for Planning gave a direction to the Council pursuant to s 55(1) of the EPA Act, as that section then stood. The direction required the Council -
"(a) to perform all of its functions under Division 4, Pt 3 of the Act, to prepare a draft local environmental plan for areas in close proximity to the railway line and Pacific Highway and the St Ives Centre which are zoned Residential "D", "E", "F" and "H" and 3(a) and 3(b) under Ku-ring-gai Planning Scheme Ordinance; ... ".
7The Council was required by the direction to include in the draft instrument provisions that -
"encouraged the provision of housing that will broaden the choice of building types and locations available in the housing market and to make more efficient use of existing infrastructure and services."
The direction further required that a principle to be implemented in preparing the draft local environmental plan was one to "revitalise the existing retail/commercial areas." | 14 |
nsw_caselaw:54a6351a3004de94513d8af1:15 | nsw_caselaw:54a6351a3004de94513d8af1 | decision | new_south_wales | nsw_caselaw | text/html | 2011-07-28 00:00:00 | Friends of Turramurra Inc v Minister for Planning [2011] NSWLEC 128 | https://www.caselaw.nsw.gov.au/decision/54a6351a3004de94513d8af1 | 2024-05-26T15:06:35.100027+10:00 | 8Between July 2005 and May 2006, a number of resolutions were passed by the Council to prepare draft local environmental plans for each of the centres and surrounding lands at St Ives, Turramurra, Pymble, Gordon, Lindfield and Roseville. The Director-General was advised of the resolutions for preparation of these local environmental plans.
9None of the draft local environmental plans prepared as a consequence of these resolutions had been made by early 2008. On 29 February 2008, exercising the power available to him under s 118(1)(b) of the EPA Act, the Minister made the Environmental Planning and Assessment (Ku-ring-gai Planning Panel) Order 2008 ( the Order ). The Order was published in the Gazette on 3 March 2008. By cl 4(1)(b) of the Order, the Panel was appointed to exercise all the functions of the Council -
"(b) in relation to the making of environmental planning instruments under Pt 3 of the Act, but only in relation to:
(i) the control of dual occupancy, and | 15 |
nsw_caselaw:54a6351a3004de94513d8af1:16 | nsw_caselaw:54a6351a3004de94513d8af1 | decision | new_south_wales | nsw_caselaw | text/html | 2011-07-28 00:00:00 | Friends of Turramurra Inc v Minister for Planning [2011] NSWLEC 128 | https://www.caselaw.nsw.gov.au/decision/54a6351a3004de94513d8af1 | 2024-05-26T15:06:35.100027+10:00 | (ii) the control of development within the Ku-ring-gai Town Centres."
The "Town Centres" referred to in that clause were identified in the Order as the lands in and surrounding the six town centres that had been the subject of resolution by the Council to prepare draft local environmental plans.
10By subclause (4) of cl 4 of the Order, the plan making function of the Panel was expressed to "extend to" the making of any plan "whose making commenced before the commencement of this Order." It is accepted by the applicant that as the Council had embarked upon the plan making process for each of the town centres to which I have earlier referred, the Panel was empowered by the Order to take up that exercise. | 16 |
nsw_caselaw:54a6351a3004de94513d8af1:17 | nsw_caselaw:54a6351a3004de94513d8af1 | decision | new_south_wales | nsw_caselaw | text/html | 2011-07-28 00:00:00 | Friends of Turramurra Inc v Minister for Planning [2011] NSWLEC 128 | https://www.caselaw.nsw.gov.au/decision/54a6351a3004de94513d8af1 | 2024-05-26T15:06:35.100027+10:00 | 11This the Panel did. On 12 March 2008, it resolved to consider a report from Council staff outlining options for "finalising" a draft instrument that had been submitted to the Department of Planning by the Council. It also resolved, as an alternative, to prepare a draft "comprehensive" local environmental plan for all the town centres. In addition, it resolved to advise the Department of Planning of its decision to prepare the draft comprehensive instrument.
12However, on 11 June 2006 the Panel resolved that a single comprehensive "Town Centres Local Environmental Plan" be prepared for consideration by the Panel, the preparation of the draft to be undertaken by Council staff who provided administrative assistance to the Panel. At its meeting held on 30 July 2008, the Panel resolved to endorse a time-table for preparation of the comprehensive draft local environmental plan, a time-table that included community consultation in the various centres as well as statutory exhibition of the draft instrument. | 17 |
nsw_caselaw:54a6351a3004de94513d8af1:18 | nsw_caselaw:54a6351a3004de94513d8af1 | decision | new_south_wales | nsw_caselaw | text/html | 2011-07-28 00:00:00 | Friends of Turramurra Inc v Minister for Planning [2011] NSWLEC 128 | https://www.caselaw.nsw.gov.au/decision/54a6351a3004de94513d8af1 | 2024-05-26T15:06:35.100027+10:00 | 13Meantime, the Regional Director of the Department of Planning had been notified pursuant to s 54(4) of the EPA Act of the decision of the Panel to prepare the draft comprehensive local environmental plan for the whole of the town centres area identified in the Order. The Department of Planning had also been consulted in the preparation of the time-table for preparation of the draft instrument ( the draft Centres LEP ), being the time-table adopted on 30 July. | 18 |
nsw_caselaw:54a6351a3004de94513d8af1:19 | nsw_caselaw:54a6351a3004de94513d8af1 | decision | new_south_wales | nsw_caselaw | text/html | 2011-07-28 00:00:00 | Friends of Turramurra Inc v Minister for Planning [2011] NSWLEC 128 | https://www.caselaw.nsw.gov.au/decision/54a6351a3004de94513d8af1 | 2024-05-26T15:06:35.100027+10:00 | 14The Director-General's response to notification pursuant to s 54(4) was, for present purposes, twofold. First, he determined that it was unnecessary to prepare an environmental study in respect of the draft Centres LEP (cf. s 74(2)(b) EPA Act). Second, on 12 August 2008 he signed a document entitled "Written Authorisation to Exercise Delegation" ( the Delegation ), delegating to the Panel his functions under ss 65(1) and 69(1) of the EPA Act with respect to the draft Centres LEP. It will be necessary to consider the terms of the Delegation in greater detail when considering grounds of challenge (i) and (v) earlier identified
15On 5 November 2008 the chairperson of the Panel signed a certificate under s 65 of the EPA Act in respect of the draft Centres LEP. The validity of her action in so doing is the subject of challenge. On that same date the Panel met and resolved to adopt the draft instrument for exhibition in accordance with s 66 of the EPA Act. | 19 |
nsw_caselaw:54a6351a3004de94513d8af1:20 | nsw_caselaw:54a6351a3004de94513d8af1 | decision | new_south_wales | nsw_caselaw | text/html | 2011-07-28 00:00:00 | Friends of Turramurra Inc v Minister for Planning [2011] NSWLEC 128 | https://www.caselaw.nsw.gov.au/decision/54a6351a3004de94513d8af1 | 2024-05-26T15:06:35.100027+10:00 | 16The draft Centres LEP was, according to advertisements published in the North Shore Times Newspaper, on exhibition from 17 November until 19 December 2008. In addition to the advertisements published in that newspaper, form letters were sent on behalf of the Council to all residents of Ku-ring-gai advising of the preparation of the draft local environmental plan, indicating the places where documents may be inspected and inviting submissions. In addition, a DVD containing "the key relevant exhibition material" was forwarded to each household within the boundaries of each town centre area. This material was provided to residents prior to commencement of the advertised exhibition period. | 20 |
nsw_caselaw:54a6351a3004de94513d8af1:21 | nsw_caselaw:54a6351a3004de94513d8af1 | decision | new_south_wales | nsw_caselaw | text/html | 2011-07-28 00:00:00 | Friends of Turramurra Inc v Minister for Planning [2011] NSWLEC 128 | https://www.caselaw.nsw.gov.au/decision/54a6351a3004de94513d8af1 | 2024-05-26T15:06:35.100027+10:00 | 17The draft Centres LEP was next considered by the Panel at its meeting on 27 May 2009. Members of the Panel had previously been circulated with a lengthy and detailed report, prepared by Council officers. That report identified and summarised more than 1800 submissions received in response to exhibition of the draft instrument, made observations concerning those submissions and recommended that amendments be made to the exhibited draft.
18At that meeting, the Panel resolved to adopt the draft Centres LEP as amended in accordance with the recommendations made in the report presented to it. It also resolved that the draft instrument, as amended, be submitted to the Minister in accordance with s 69 of the EPA Act. Following the Panel's consideration of the draft instrument on that occasion, further amendments were made to it as a result of representations made by the Department of Planning and also following upon consideration of the draft by Parliamentary Counsel | 21 |
nsw_caselaw:54a6351a3004de94513d8af1:22 | nsw_caselaw:54a6351a3004de94513d8af1 | decision | new_south_wales | nsw_caselaw | text/html | 2011-07-28 00:00:00 | Friends of Turramurra Inc v Minister for Planning [2011] NSWLEC 128 | https://www.caselaw.nsw.gov.au/decision/54a6351a3004de94513d8af1 | 2024-05-26T15:06:35.100027+10:00 | 19Ultimately, the report prepared by the Panel pursuant to s 69, in accordance with the Delegation, recommending that the Centres LEP be made in accordance with the draft as amended to that date, was forwarded to the Minister on 9 December 2009. Subsequently, a supplementary report under s 69 was prepared by the Director-General of the Department of Planning recommending further amendment of the draft instrument and also recommending the making of the amended draft as a local environmental plan.
20The Minister accepted the recommendation and ultimately made the Centres LEP in the form amended by the Panel and as further amended by him in accordance with the recommendation of the Director-General. Neither public notice nor public exhibition of the draft instrument, as amended by the Panel or the Minister, was undertaken prior to its signing by the Minister and publication on the NSW legislation web site on 25 May 2010. | 22 |
nsw_caselaw:54a6351a3004de94513d8af1:23 | nsw_caselaw:54a6351a3004de94513d8af1 | decision | new_south_wales | nsw_caselaw | text/html | 2011-07-28 00:00:00 | Friends of Turramurra Inc v Minister for Planning [2011] NSWLEC 128 | https://www.caselaw.nsw.gov.au/decision/54a6351a3004de94513d8af1 | 2024-05-26T15:06:35.100027+10:00 | 21It is in the context of this overview of the background facts that the grounds of challenge to the validity of the Centres LEP must be considered. I now turn to consider each of these grounds. | 23 |
nsw_caselaw:54a6351a3004de94513d8af1:24 | nsw_caselaw:54a6351a3004de94513d8af1 | decision | new_south_wales | nsw_caselaw | text/html | 2011-07-28 00:00:00 | Friends of Turramurra Inc v Minister for Planning [2011] NSWLEC 128 | https://www.caselaw.nsw.gov.au/decision/54a6351a3004de94513d8af1 | 2024-05-26T15:06:35.100027+10:00 | Ground (i): validity of the s 65 c ertificate
22As the provisions of the Act stood in November 2008, the step required to be taken before a draft local environmental plan could be publicly exhibited was the issue of a certificate by the Director-General, certifying that the exhibition process may be undertaken. The applicant contends that no valid certificate was issued in respect of the draft Centres LEP, the Director-General himself not having purported to do so, because -
(i) the Director-General's delegation of his function under s 65 was to the Panel and, at no time, did the Panel resolve to issue a certificate under the section;
(ii) the chair-person of the Panel, who signed a document purporting to be a certificate under the section, was not delegated by the Director-General to issue the certificate, | 24 |
nsw_caselaw:54a6351a3004de94513d8af1:25 | nsw_caselaw:54a6351a3004de94513d8af1 | decision | new_south_wales | nsw_caselaw | text/html | 2011-07-28 00:00:00 | Friends of Turramurra Inc v Minister for Planning [2011] NSWLEC 128 | https://www.caselaw.nsw.gov.au/decision/54a6351a3004de94513d8af1 | 2024-05-26T15:06:35.100027+10:00 | (iii) the delegation to the panel was conditional upon compliance with the Best Practice Guidelines published by the Department of Urban Affairs and Planning in January 1997 ( the Guideline ) and that condition was not fulfilled.
23By s 23 of the EPA Act, the Director-General was authorised to delegate his functions under the EPA Act. It was in exercise of this power that the Director-General signed the Delegation to which I have referred at [14]. Relevantly, the terms of the authorisation or Delegation were expressed as follows -
"This is a written authorisation to Exercise Delegation (' authorisation ') pursuant to the instrument of Delegation executed by the Director-General of the Department of Planning ... on 16 February 2006 (' Delegation '). | 25 |
nsw_caselaw:54a6351a3004de94513d8af1:26 | nsw_caselaw:54a6351a3004de94513d8af1 | decision | new_south_wales | nsw_caselaw | text/html | 2011-07-28 00:00:00 | Friends of Turramurra Inc v Minister for Planning [2011] NSWLEC 128 | https://www.caselaw.nsw.gov.au/decision/54a6351a3004de94513d8af1 | 2024-05-26T15:06:35.100027+10:00 | Subject to the Delegation and the terms and conditions specified in schedule 1 to this Authorisation, the following functions are delegated to Ku-ring-gai Planning Panel with respect to the draft local environmental plan the subject of notification by Council [sic] to the Director-General under section 54(4) of the Environmental Planning and Assessment Act 1979 (' EP&A Act ') dated 27 June 2008, being Draft Ku-ring-gai Local Environmental Plan (Town Centres).
* Sections 65(1)
* Sections 69(1)."
24The Schedule identified in the Delegation was in the following terms:
" Schedule 1
The exercise of the function (s) under the Delegation is subject to:
1. the draft LEP being consistent with any relevant Ministerial Direction issued pursuant to section 117 of the EP&A Act; and
2. The draft LEP not being the subject of an unresolved objection by a public authority or body; and
3. the draft LEP not containing provisions suspending laws pursuant to Section 28 of the EP&A Act; and | 26 |
nsw_caselaw:54a6351a3004de94513d8af1:27 | nsw_caselaw:54a6351a3004de94513d8af1 | decision | new_south_wales | nsw_caselaw | text/html | 2011-07-28 00:00:00 | Friends of Turramurra Inc v Minister for Planning [2011] NSWLEC 128 | https://www.caselaw.nsw.gov.au/decision/54a6351a3004de94513d8af1 | 2024-05-26T15:06:35.100027+10:00 | 4. compliance with the Best Practice Guidelines published by the Department of Urban Affairs and Planning in January 1997 entitled " LEP and Council land - Guidelines for Councils using delegated powers to prepare LEPs involving land that is or was previously owned or controlled by Council ; and
5. compliance with instructions issued by the Director-General with respect to the preparation and content of reports prepared pursuant to section 69 of the EP&A Act."
No issue is taken by the applicant as to the validity of the Delegation.
25It is accepted by the Minister that the Director-General himself did not purport to issue a certificate under s 65 in respect of the draft Centres LEP. The only document that purports to be such a certificate is the document signed by the Chairperson of the Panel on 5 November 2008. It was in the following terms:
" ENVIRONMENTAL PLANNING AND ASSESSMENT ACT 1979
SECTION 65(2) CERTIFICATE | 27 |
nsw_caselaw:54a6351a3004de94513d8af1:28 | nsw_caselaw:54a6351a3004de94513d8af1 | decision | new_south_wales | nsw_caselaw | text/html | 2011-07-28 00:00:00 | Friends of Turramurra Inc v Minister for Planning [2011] NSWLEC 128 | https://www.caselaw.nsw.gov.au/decision/54a6351a3004de94513d8af1 | 2024-05-26T15:06:35.100027+10:00 | As a delegate of the Director General of the Department of Planning under s 65(2) of the Environmental Planning and Assessment Act, 1979 I, Elizabeth Crouch, certify that the Draft Local Environmental Plan referred to in Schedule 1 may be publicly exhibited in accordance with section 66 of the Act."
Beneath the signature of the Chairperson the following appeared:
"As a delegate to [sic] the Director General of Planning and I certify that I have no notice of the revocation of such delegation".
26The Schedule referred to in the certificate was as follows:
" Schedule 1
Draft Ku-ring-gai Local Environmental Plan (Town Centres) 2008.
To rezone lands within the area included in the Environmental Planning and Assessment Act (Ku-ring-gai Planning Panel) Order 2008 dated 29 February 2008." | 28 |
nsw_caselaw:54a6351a3004de94513d8af1:29 | nsw_caselaw:54a6351a3004de94513d8af1 | decision | new_south_wales | nsw_caselaw | text/html | 2011-07-28 00:00:00 | Friends of Turramurra Inc v Minister for Planning [2011] NSWLEC 128 | https://www.caselaw.nsw.gov.au/decision/54a6351a3004de94513d8af1 | 2024-05-26T15:06:35.100027+10:00 | 27Two matters will immediately be apparent from a comparison between the terms of the Delegation and the certificate signed by the Panel Chairperson. While the relevant function delegated to the Panel was expressed to be that arising under s 65(1), the certificate purports to be given pursuant to s 65(2). The second matter to be noticed is that the Chairperson, in her own name, purports to sign the document as the delegate of the Director-General. As the Delegation makes clear, the Director-General's function is delegated to the Panel. | 29 |
nsw_caselaw:54a6351a3004de94513d8af1:30 | nsw_caselaw:54a6351a3004de94513d8af1 | decision | new_south_wales | nsw_caselaw | text/html | 2011-07-28 00:00:00 | Friends of Turramurra Inc v Minister for Planning [2011] NSWLEC 128 | https://www.caselaw.nsw.gov.au/decision/54a6351a3004de94513d8af1 | 2024-05-26T15:06:35.100027+10:00 | 28In relation to the latter of these two matters, the provisions of s 118AA of the EPA Act need to be noticed. This section addresses the constitution of a planning assessment panel appointed pursuant to s 118(1), as was the present Panel. Such a Panel is a Body Corporate (subsection (2)) and is a statutory body representing the Crown (subsection (3)). While subsection (6) requires the Minister to appoint a member of a panel as Chairperson, none of the other provisions of the section nor those contained in Pt 2 of Schedule 5B to the EPA Act (containing provisions relating to such panels) would appear to authorise the Chairperson to act in the name of, or exercise the authority of, a panel to whom that person is appointed. | 30 |
nsw_caselaw:54a6351a3004de94513d8af1:31 | nsw_caselaw:54a6351a3004de94513d8af1 | decision | new_south_wales | nsw_caselaw | text/html | 2011-07-28 00:00:00 | Friends of Turramurra Inc v Minister for Planning [2011] NSWLEC 128 | https://www.caselaw.nsw.gov.au/decision/54a6351a3004de94513d8af1 | 2024-05-26T15:06:35.100027+10:00 | 29It was accepted by the Minister that the two matters to which I have adverted in respect of the certificate signed on 5 November 2008 reflected an "irregularity in the making of the s 65 Certificate". Nonetheless, it was submitted that this "irregularity" did not spell invalidity for the Centres LEP. The bases for this submission will be addressed shortly. Before turning to consider the competing submissions it is necessary to record the events of 5 November 2008. A meeting of the Panel was appointed to take place on that day. | 31 |
nsw_caselaw:54a6351a3004de94513d8af1:32 | nsw_caselaw:54a6351a3004de94513d8af1 | decision | new_south_wales | nsw_caselaw | text/html | 2011-07-28 00:00:00 | Friends of Turramurra Inc v Minister for Planning [2011] NSWLEC 128 | https://www.caselaw.nsw.gov.au/decision/54a6351a3004de94513d8af1 | 2024-05-26T15:06:35.100027+10:00 | 30I have already indicated that secretarial or administrative services were provided to the Panel by Council staff. On 24 October 2008, four senior staff members signed a lengthy and detailed report addressing the draft Centres LEP that they had prepared in response to the Panel's resolution earlier in the year, recommending that the draft instrument for exhibition in accordance with s 66 of the EPA Act ( the October 2008 Report ). The draft Centres LEP was one of 17 attachments to that Report. That Report, together with attachments, was circulated to Panel members in advance of the meeting of 5 November. | 32 |
nsw_caselaw:54a6351a3004de94513d8af1:33 | nsw_caselaw:54a6351a3004de94513d8af1 | decision | new_south_wales | nsw_caselaw | text/html | 2011-07-28 00:00:00 | Friends of Turramurra Inc v Minister for Planning [2011] NSWLEC 128 | https://www.caselaw.nsw.gov.au/decision/54a6351a3004de94513d8af1 | 2024-05-26T15:06:35.100027+10:00 | 31Ms Crouch gave evidence in these proceedings. It appears that although the meeting of the Panel was appointed to commence at 5.00pm on 5 November 2008, earlier in the afternoon Panel members met with the Mayor, at least one Councillor and the four members of staff who had prepared the October 2008 Report. Although Ms Crouch has no clear recollection of the timing, it is probable that in the course of these discussions, she signed the certificate that is the subject of the present submission. It is her recollection that the document was presented to her by one of the Council staff members who was present at that time.
32I infer from the evidence of Ms Crouch that she signed the document without any challenge to the terms in which it was expressed. As her evidence makes abundantly clear, she relied upon the fact that the document was prepared for her by Council staff with the result that there was no necessity for her to question her action in signing it. | 33 |
nsw_caselaw:54a6351a3004de94513d8af1:34 | nsw_caselaw:54a6351a3004de94513d8af1 | decision | new_south_wales | nsw_caselaw | text/html | 2011-07-28 00:00:00 | Friends of Turramurra Inc v Minister for Planning [2011] NSWLEC 128 | https://www.caselaw.nsw.gov.au/decision/54a6351a3004de94513d8af1 | 2024-05-26T15:06:35.100027+10:00 | 33As I have said, it is probable that the Certificate was signed by Ms Crouch before commencement of the meeting on 5 November 2008. The evidence does not suggest that the issue of the certificate was the subject of consideration at the formal meeting of the Panel commencing at 5.00pm on 5 November. Certainly, the October 2008 Report did not, in terms, address the issue of that certificate.
34At the conclusion of the meeting of the Panel on 5 November there were a number of resolutions that were carried unanimously. It is only the first of those resolutions which is presently relevant. It was as follows:
"A. That the Ku-ring-gai Planning Panel adopts the draft Kur-ring-gai (Town Centres) Local Environmental Plan 2008 for exhibition in accordance with section 66 of the Environmental Planning and Assessment Act 1979."
35The competing submissions of the parties render it necessary that the provisions of s 65 be quoted. The section, in the form it took on 5 November 2008, provided: | 34 |
nsw_caselaw:54a6351a3004de94513d8af1:35 | nsw_caselaw:54a6351a3004de94513d8af1 | decision | new_south_wales | nsw_caselaw | text/html | 2011-07-28 00:00:00 | Friends of Turramurra Inc v Minister for Planning [2011] NSWLEC 128 | https://www.caselaw.nsw.gov.au/decision/54a6351a3004de94513d8af1 | 2024-05-26T15:06:35.100027+10:00 | " 65 Certificate of Director-General
(1) Where the Director-General receives a copy of a draft local environmental plan from a council under section 64, the Director-General may cause to be issued to the council a certificate certifying that the draft plan may be publicly exhibited in accordance with section 66.
(1A) A certificate is not to be issued under this section unless the Director-General is satisfied that the draft local environmental plan has been prepared in accordance with any applicable standard instrument under section 33A. This subsection does not limit the grounds on which a certificate may be refused or the draft plan may be required to be amended under this section.
(2) A certificate issued under this section may be granted subject to the condition that the draft local environmental plan be amended in the manner specified in the certificate before it is publicly exhibited in accordance with section 66. | 35 |
nsw_caselaw:54a6351a3004de94513d8af1:36 | nsw_caselaw:54a6351a3004de94513d8af1 | decision | new_south_wales | nsw_caselaw | text/html | 2011-07-28 00:00:00 | Friends of Turramurra Inc v Minister for Planning [2011] NSWLEC 128 | https://www.caselaw.nsw.gov.au/decision/54a6351a3004de94513d8af1 | 2024-05-26T15:06:35.100027+10:00 | (3) Where a certificate is not issued under this section, the Director-General shall return the draft plan to the council, giving the reasons why the certificate was not issued, and directing the council to amend the draft plan in such a manner as to enable a certificate to be issued, or to take such other action as is appropriate.
(4) The council shall comply with the direction given under subsection (3)."
36Relevant to the interpretation and operation of s 65 is s 66. Subsection (1) of the latter section relevantly provides -
"(1) Where a council receives a certificate under section 65 with respect to a draft local environmental plan, it shall, after complying with any condition subject to which the certificate was granted and subject to the regulations:
(a) give public notice ...
(b) publicly exhibit ... a copy of ... [the] draft local environmental plan ... ". | 36 |
nsw_caselaw:54a6351a3004de94513d8af1:37 | nsw_caselaw:54a6351a3004de94513d8af1 | decision | new_south_wales | nsw_caselaw | text/html | 2011-07-28 00:00:00 | Friends of Turramurra Inc v Minister for Planning [2011] NSWLEC 128 | https://www.caselaw.nsw.gov.au/decision/54a6351a3004de94513d8af1 | 2024-05-26T15:06:35.100027+10:00 | 37The facts and statutory provisions to which I have referred readily enable the essence of the applicant's submissions to be appreciated. The draft planning instrument having been "received" by the Director-General, his delegate was required to issue a certificate or cause such certificate to be issued as s 65 required. Ms Crouch was not the delegate of the Director-General authorised to issue that certificate, a fact that was expressly conceded by the Minister. There being no certificate issued by the Director-General himself or any other person or body to whom the function had been delegated, the necessary precondition for exhibition of the draft Centres LEP had not been fulfilled.
38Notwithstanding the concession by the Minister that I have just recorded and the "irregularity" in the issue of the certificate earlier identified, the Minister submits that invalidity does not arise for three reasons:
(i) no certificate under s 65(1) was required; | 37 |
nsw_caselaw:54a6351a3004de94513d8af1:38 | nsw_caselaw:54a6351a3004de94513d8af1 | decision | new_south_wales | nsw_caselaw | text/html | 2011-07-28 00:00:00 | Friends of Turramurra Inc v Minister for Planning [2011] NSWLEC 128 | https://www.caselaw.nsw.gov.au/decision/54a6351a3004de94513d8af1 | 2024-05-26T15:06:35.100027+10:00 | (ii) in the alternative, the effect of the Panel's resolution on 5 November 2008 was to approve the issue of the certificate; and
(iii) assuming the issue of such a certificate was required and none was issued, upon the proper interpretation of the EPA Act, that failure did not result in invalidity of the Centres LEP as ultimately made by the Minister. | 38 |
nsw_caselaw:54a6351a3004de94513d8af1:39 | nsw_caselaw:54a6351a3004de94513d8af1 | decision | new_south_wales | nsw_caselaw | text/html | 2011-07-28 00:00:00 | Friends of Turramurra Inc v Minister for Planning [2011] NSWLEC 128 | https://www.caselaw.nsw.gov.au/decision/54a6351a3004de94513d8af1 | 2024-05-26T15:06:35.100027+10:00 | Requirement for the issue of a Certificate under s 65(1)
39The Minister accepts that the effect of a certificate under s 65 is to satisfy the precondition for public exhibition under s 66. Its only statutory consequence is to permit that exhibition.
40Having acknowledged the purpose said to be served by the issue of the certificate, he submits that the requirement for the issue of the certificate needs to be considered in the context of the Delegation, whereby the Panel, as the body preparing the draft Centres LEP, was also delegated to issue the s 65 certificate. There being no challenge to the validity of the Delegation, authorised by s 23 of the EPA Act, the process of issuing such a certificate was an artificial procedural exercise because it was hardly conceivable that the Panel, having prepared and adopted the Panel's draft LEP, would not permit itself to exhibit it. | 39 |
nsw_caselaw:54a6351a3004de94513d8af1:40 | nsw_caselaw:54a6351a3004de94513d8af1 | decision | new_south_wales | nsw_caselaw | text/html | 2011-07-28 00:00:00 | Friends of Turramurra Inc v Minister for Planning [2011] NSWLEC 128 | https://www.caselaw.nsw.gov.au/decision/54a6351a3004de94513d8af1 | 2024-05-26T15:06:35.100027+10:00 | 41In the circumstances that here pertain, it is said that the "artificial procedural exercise" just identified leads to an absurd result requiring the Panel to undertake "the solemn farce" of issuing the certificate to itself. By reason of this result the well known observations of the High Court in Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation [1981] HCA 26; (1981) 147 CLR 297 (per Gibbs CJ at 304) is prayed in aid.
42Such a result is to be avoided. Thus, the Minister submits, the opening words of s 66 should not be taken to apply where, in consequence of a delegation given in accordance with s 23, a council or body exercising its functions under Div 4 of Pt 3 of the EPA Act (as was the Panel in the present case) is authorised to issue the certificate to itself. | 40 |
nsw_caselaw:54a6351a3004de94513d8af1:41 | nsw_caselaw:54a6351a3004de94513d8af1 | decision | new_south_wales | nsw_caselaw | text/html | 2011-07-28 00:00:00 | Friends of Turramurra Inc v Minister for Planning [2011] NSWLEC 128 | https://www.caselaw.nsw.gov.au/decision/54a6351a3004de94513d8af1 | 2024-05-26T15:06:35.100027+10:00 | 43While the Minister's argument has some attraction, I have concluded that it is not correct. The function involved in preparing and submitting a draft local environmental plan to the Director-General in accordance with s 64 and also determining to exhibit the plan differs from the function of certifying the plan for public exhibition. So much, so it seems to me, is apparent from consideration of the statutory provisions. | 41 |
nsw_caselaw:54a6351a3004de94513d8af1:42 | nsw_caselaw:54a6351a3004de94513d8af1 | decision | new_south_wales | nsw_caselaw | text/html | 2011-07-28 00:00:00 | Friends of Turramurra Inc v Minister for Planning [2011] NSWLEC 128 | https://www.caselaw.nsw.gov.au/decision/54a6351a3004de94513d8af1 | 2024-05-26T15:06:35.100027+10:00 | 44It must be assumed that there was a legislative purpose intended by interposing the requirement for a certificate under s 65 between draft plan preparation and its exhibition. Consideration of the provisions of Pt 3 of the EPA Act would suggest that interposition of the requirement for certification arises by reason of the fact that preparation of a draft local environmental plan under Div 4 of Pt 3 is undertaken by a council or other body acting in its stead rather than by those over whom the Director-General exercises direct control. This would appear to be the explanation for the absence of any requirement for a comparable certificate in the case of a draft regional environmental plan to be made under Div 3 of Pt 3, as those provisions stood in November 2008. | 42 |
nsw_caselaw:54a6351a3004de94513d8af1:43 | nsw_caselaw:54a6351a3004de94513d8af1 | decision | new_south_wales | nsw_caselaw | text/html | 2011-07-28 00:00:00 | Friends of Turramurra Inc v Minister for Planning [2011] NSWLEC 128 | https://www.caselaw.nsw.gov.au/decision/54a6351a3004de94513d8af1 | 2024-05-26T15:06:35.100027+10:00 | 45Perhaps more significantly, the provisions of s 65 itself identify matters to be addressed when performing the function under that section. Subsection (1A) is a "gateway" provision requiring satisfaction to be had that the draft plan had been prepared in accordance with "any applicable standard instrument under section 33A". The last sentence of the same subsection also allows other matters to be considered in relation to the draft prior to its public exhibition. Alternatively, the provisions of subsection (2) enable consideration as to whether a conditional certificate should be issued. | 43 |
nsw_caselaw:54a6351a3004de94513d8af1:44 | nsw_caselaw:54a6351a3004de94513d8af1 | decision | new_south_wales | nsw_caselaw | text/html | 2011-07-28 00:00:00 | Friends of Turramurra Inc v Minister for Planning [2011] NSWLEC 128 | https://www.caselaw.nsw.gov.au/decision/54a6351a3004de94513d8af1 | 2024-05-26T15:06:35.100027+10:00 | 46Finally, where the certificate is given by a delegate of the Director-General, that delegate needs to be satisfied that the conditions upon which it is able to exercise delegation for the purpose of giving the certificate have been fulfilled. As is apparent from the terms of the Delegation that I have earlier quoted, the Panel was not able to exercise the function under s 65(1) unless the conditions stated in that Delegation were fulfilled. The fact that the Director-General had expressly delegated the function under s 65(1) suggests to me that the function was intended to be exercised and the further circumstance that conditions were imposed upon that exercise indicate that the Panel was meant to consider whether it was complying with those conditions when performing the function. | 44 |
nsw_caselaw:54a6351a3004de94513d8af1:45 | nsw_caselaw:54a6351a3004de94513d8af1 | decision | new_south_wales | nsw_caselaw | text/html | 2011-07-28 00:00:00 | Friends of Turramurra Inc v Minister for Planning [2011] NSWLEC 128 | https://www.caselaw.nsw.gov.au/decision/54a6351a3004de94513d8af1 | 2024-05-26T15:06:35.100027+10:00 | 47Focus must also be had upon the identity of the delegate, in this case the Panel, who is required to exercise the function. It can be expected that the functionary to whom the delegation is made is unlikely to be the person or persons actually drafting the planning instrument, notwithstanding that its substance may have been the subject of direction by the delegate. This has the consequence that there is work to do for the statutory provisions in requiring consideration of the matters identified in s 65, even if that involves no more than the delegate receiving a check list against requirements from those persons who actually drafted the instrument. As the applicant submitted, to determine otherwise would be to deprive the provisions of both s 65 and the opening words of s 66 of any content. | 45 |
nsw_caselaw:54a6351a3004de94513d8af1:46 | nsw_caselaw:54a6351a3004de94513d8af1 | decision | new_south_wales | nsw_caselaw | text/html | 2011-07-28 00:00:00 | Friends of Turramurra Inc v Minister for Planning [2011] NSWLEC 128 | https://www.caselaw.nsw.gov.au/decision/54a6351a3004de94513d8af1 | 2024-05-26T15:06:35.100027+10:00 | 48I can accept that, at a practical level, it is most unlikely that a delegate, in the position of the Panel, would deny to itself the grant of the requisite certificate. That practical reality does not preclude the need for a certificate that is given after the requirements of s 65 have been addressed.
49The requirement to issue a certificate under s 65, even where the function so to do has been delegated to the body responsible for preparation of a local environmental plan, does not, upon a proper consideration of the statutory provisions, lead to a "capricious and irrational" result (cf Cooper Brookes (Wollongong) per Mason and Wilson JJ at 321). Contrary to the Minister's submissions, a certificate under s 65 was required to be issued. Whether any failure to issue the certificate is intended to visit invalidity upon the Centres LEP will be separately considered. | 46 |
nsw_caselaw:54a6351a3004de94513d8af1:47 | nsw_caselaw:54a6351a3004de94513d8af1 | decision | new_south_wales | nsw_caselaw | text/html | 2011-07-28 00:00:00 | Friends of Turramurra Inc v Minister for Planning [2011] NSWLEC 128 | https://www.caselaw.nsw.gov.au/decision/54a6351a3004de94513d8af1 | 2024-05-26T15:06:35.100027+10:00 | Panel resolution of 5 November 2008: issue of a s 65 Certificate?
50As I have earlier indicated, the Panel resolved at its meeting on 5 November 2008 to adopt the draft Centres LEP "for exhibition in accordance with section 66" of the EPA Act. The terms of this resolution, so the Minister argues, should be taken as a determination by the Panel that the s 65 certificate be issued and, having so issued, authorise the exhibition of the draft instrument. It is further submitted that the defective form of the certificate itself does not defeat the substance of the Panel's resolution. | 47 |
nsw_caselaw:54a6351a3004de94513d8af1:48 | nsw_caselaw:54a6351a3004de94513d8af1 | decision | new_south_wales | nsw_caselaw | text/html | 2011-07-28 00:00:00 | Friends of Turramurra Inc v Minister for Planning [2011] NSWLEC 128 | https://www.caselaw.nsw.gov.au/decision/54a6351a3004de94513d8af1 | 2024-05-26T15:06:35.100027+10:00 | 51Support for the effect attributed to the resolution of 5 November is said to be found in the events immediately preceding the Panel's formal meeting on that day. It will be remembered that Ms Crouch and other Panel members met with Council staff prior to the formal meeting. It was then that Ms Crouch signed the certificate. In consequence, so it is argued, the resolution should be taken as ratification of Ms Crouch's action in signing the certificate.
52In my opinion, the resolution of the Panel cannot be interpreted to have the effect attributed to it by the Minister. The reason for this lies essentially in the matters that I have addressed when determining whether a certificate under s 65 was required before the draft Centres LEP was exhibited. | 48 |
nsw_caselaw:54a6351a3004de94513d8af1:49 | nsw_caselaw:54a6351a3004de94513d8af1 | decision | new_south_wales | nsw_caselaw | text/html | 2011-07-28 00:00:00 | Friends of Turramurra Inc v Minister for Planning [2011] NSWLEC 128 | https://www.caselaw.nsw.gov.au/decision/54a6351a3004de94513d8af1 | 2024-05-26T15:06:35.100027+10:00 | 53The resolution does not, in terms, identify the matters necessary to be addressed when determining whether the certificate should be issued. While the October 2008 Report contains voluminous material from which matters relevant to the exercise of the s 65 function could be gleaned, I do not identify in the Report any requirement to consider such matters in the context of issuing that certificate. To the extent that it is relevant, neither the evidence of Ms Crouch nor that of Mr Fabbro, the Manager of Urban Planning with the Council and one of the Council staff members responsible for preparing the draft instrument, indicates that matters relevant to the s 65 function were drawn to Ms Crouch's attention. She simply signed the document presented to her.
54It is for these reasons that I reject the Panel's resolution of 5 November 2008 as manifesting an exercise of the function delegated to it to issue a certificate under s 65 to exhibit the draft Centres LEP. | 49 |
nsw_caselaw:54a6351a3004de94513d8af1:50 | nsw_caselaw:54a6351a3004de94513d8af1 | decision | new_south_wales | nsw_caselaw | text/html | 2011-07-28 00:00:00 | Friends of Turramurra Inc v Minister for Planning [2011] NSWLEC 128 | https://www.caselaw.nsw.gov.au/decision/54a6351a3004de94513d8af1 | 2024-05-26T15:06:35.100027+10:00 | Section 65 certificate: compliance with conditions of Delegation?
55A ground of challenge to the validity of the s 65 certificate advanced by the applicant turned upon the conditions attached by the Director-General to the Delegation. It was a condition of the Delegation that in exercising the function under s 65 and s 69, the Panel was required to comply with the Guidelines. The applicant claims that, assuming the Panel is taken to have issued a s 65 certificate for exhibition of the draft Centres LEP, in so doing it did not comply with the Guidelines, with the consequence that there was no valid exercise of the delegated function.
56Reliance is placed upon cll 2.1.3 and 2.1.4 of the Guidelines. The context in which those clauses are found in the Guidelines are the provisions directed to information that "must be included in the material displayed during exhibition": cl 2.1. | 50 |
nsw_caselaw:54a6351a3004de94513d8af1:51 | nsw_caselaw:54a6351a3004de94513d8af1 | decision | new_south_wales | nsw_caselaw | text/html | 2011-07-28 00:00:00 | Friends of Turramurra Inc v Minister for Planning [2011] NSWLEC 128 | https://www.caselaw.nsw.gov.au/decision/54a6351a3004de94513d8af1 | 2024-05-26T15:06:35.100027+10:00 | 57In light of my determination that a s 65 certificate was required but that the Panel had not issued such certificate, it is strictly unnecessary for me to determine this ground of challenge. However, there seems to be substance in the submission of the Minister that any obligation imposed by cll 2.1.3 and 2.1.4 had not been engaged at the time of issuing a s 65 certificate. As the applicant otherwise argued, the issue of such a certificate was a necessary precondition to the exhibition of the draft Centres LEP. | 51 |
nsw_caselaw:54a6351a3004de94513d8af1:52 | nsw_caselaw:54a6351a3004de94513d8af1 | decision | new_south_wales | nsw_caselaw | text/html | 2011-07-28 00:00:00 | Friends of Turramurra Inc v Minister for Planning [2011] NSWLEC 128 | https://www.caselaw.nsw.gov.au/decision/54a6351a3004de94513d8af1 | 2024-05-26T15:06:35.100027+10:00 | Did the failure to issue the Certificate invalidate the LEP?
58It is now settled legal principle that not every act of an administrative decision maker, when breaching an empowering statutory provision, will visit invalidity upon that act. As has been acknowledged ( Smith v Wyong Shire Council [2003] NSWCA 322; (2003) 132 LGERA 148 per Spigelman CJ at [6]), the principle is settled by the majority judgment of the High Court in Project Blue Sky v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 as articulated at [91]: | 52 |
nsw_caselaw:54a6351a3004de94513d8af1:53 | nsw_caselaw:54a6351a3004de94513d8af1 | decision | new_south_wales | nsw_caselaw | text/html | 2011-07-28 00:00:00 | Friends of Turramurra Inc v Minister for Planning [2011] NSWLEC 128 | https://www.caselaw.nsw.gov.au/decision/54a6351a3004de94513d8af1 | 2024-05-26T15:06:35.100027+10:00 | "An act done in breach of a condition regulating the exercise of a statutory power is not necessarily invalid and of no effect. Whether it is depends upon whether there can be discerned a legislative purpose to invalidate any act that fails to comply with the condition. The existence of the purpose is ascertained by reference to the language of the statute, its subject matter and objects, and the consequences for the parties of holding void every act done in breach of the condition. Unfortunately, a finding of purpose or no purpose in this context often reflects a contestable judgment. The cases show various factors that have proved decisive in various contexts, but they do no more than provide guidance in analogous circumstances. There is no decisive rule that can be applied; there is not even a ranking of relevant factors or categories to give guidance on the issue." | 53 |
nsw_caselaw:54a6351a3004de94513d8af1:54 | nsw_caselaw:54a6351a3004de94513d8af1 | decision | new_south_wales | nsw_caselaw | text/html | 2011-07-28 00:00:00 | Friends of Turramurra Inc v Minister for Planning [2011] NSWLEC 128 | https://www.caselaw.nsw.gov.au/decision/54a6351a3004de94513d8af1 | 2024-05-26T15:06:35.100027+10:00 | 59The majority in Project Blue Sky then proceeded to discuss the erstwhile distinction made by courts when determining validity by asking whether a statutory provision was directory or mandatory. Having rejected that distinction as an appropriate test for validity of an act done in breach of a statutory provision their Honours continued (at [93]):
"A better test for determining the issue of validity is to ask whether it was a purpose of the legislation that an act done in breach of the provision should be invalid." | 54 |
nsw_caselaw:54a6351a3004de94513d8af1:55 | nsw_caselaw:54a6351a3004de94513d8af1 | decision | new_south_wales | nsw_caselaw | text/html | 2011-07-28 00:00:00 | Friends of Turramurra Inc v Minister for Planning [2011] NSWLEC 128 | https://www.caselaw.nsw.gov.au/decision/54a6351a3004de94513d8af1 | 2024-05-26T15:06:35.100027+10:00 | 60As the provisions of Div 4 of Pt 3 of the EPA Act make clear, the preparation and ultimate making of a local environmental plan is a staged process. That process is meant to proceed sequentially so that the legislation contemplates that once a decision to prepare a draft environmental plan has been made by a council (s 54), the taking of each subsequent stage assumes completion or performance of the stage immediately preceding it. Thus, by s 62, a Council preparing a draft environmental plan is obliged to consult ("shall consult") with relevant public authorities (if any) in so doing. Section 64 makes tolerably clear that the process of consultation required by s 62 is to be undertaken before the draft local environmental plan is submitted to the Director-General for the purpose of obtaining a certificate under s 65. | 55 |
nsw_caselaw:54a6351a3004de94513d8af1:56 | nsw_caselaw:54a6351a3004de94513d8af1 | decision | new_south_wales | nsw_caselaw | text/html | 2011-07-28 00:00:00 | Friends of Turramurra Inc v Minister for Planning [2011] NSWLEC 128 | https://www.caselaw.nsw.gov.au/decision/54a6351a3004de94513d8af1 | 2024-05-26T15:06:35.100027+10:00 | 61I have earlier set out the relevant provisions of ss 65 and 66. The latter section not only makes clear the need for the certificate to have issued under the former section, but also mandates the public exhibition of the draft instrument as the ensuing step to be taken in the plan making process. This ordered process provides an indication that if a step is not carried out, in the sense that the action taken or omitted to be taken does not conform to the statutory provisions pertaining to that step, then any subsequent step will lack the statutory foundation for it to be taken, thus resulting in invalidity. However, as Project Blue Sky indicates, such a result, in order to be correct, must be considered along with other factors pertaining to the proper interpretation of the critical statutory provision in context. | 56 |
nsw_caselaw:54a6351a3004de94513d8af1:57 | nsw_caselaw:54a6351a3004de94513d8af1 | decision | new_south_wales | nsw_caselaw | text/html | 2011-07-28 00:00:00 | Friends of Turramurra Inc v Minister for Planning [2011] NSWLEC 128 | https://www.caselaw.nsw.gov.au/decision/54a6351a3004de94513d8af1 | 2024-05-26T15:06:35.100027+10:00 | 62Consistent with the observations earlier made about s 65, its evident purpose is to afford to the Director-General the opportunity to examine the draft instrument so as to ensure its compliance not only with the general requirements for a proposed instrument but also to test the measure of its consistency with general policy for land use planning. The section gives effect to what is described by the Minister as "the collaborative process" envisaged by Pt 3 of the EPA Act, involving participation between a Council and the central government authority for planning in the State. That collaborative process is, in turn, informed by one of the objects of the EPA Act, expressed in s 5(b) as being to promote "the sharing of the responsibility for environmental planning between the different levels of government in the State". The executive head of the department of State responsible for environmental planning, namely the Director-General, is, understandably, the person nominated as the Minister's representative | 57 |
nsw_caselaw:54a6351a3004de94513d8af1:58 | nsw_caselaw:54a6351a3004de94513d8af1 | decision | new_south_wales | nsw_caselaw | text/html | 2011-07-28 00:00:00 | Friends of Turramurra Inc v Minister for Planning [2011] NSWLEC 128 | https://www.caselaw.nsw.gov.au/decision/54a6351a3004de94513d8af1 | 2024-05-26T15:06:35.100027+10:00 | for the purpose of this collaborative process. Indeed, by s 13(2) of the EPA Act, the Director-General is "subject to the control and direction of the Minister" subject to exceptions not, for present purposes, relevant. | 58 |
nsw_caselaw:54a6351a3004de94513d8af1:59 | nsw_caselaw:54a6351a3004de94513d8af1 | decision | new_south_wales | nsw_caselaw | text/html | 2011-07-28 00:00:00 | Friends of Turramurra Inc v Minister for Planning [2011] NSWLEC 128 | https://www.caselaw.nsw.gov.au/decision/54a6351a3004de94513d8af1 | 2024-05-26T15:06:35.100027+10:00 | 63In the process of making a local environmental plan conformably with Div 4 of Pt 3 of the EPA Act, the issue of a certificate under s 65 is not the only point in the process at which the Director-General is able to exercise oversight. While the Minister ultimately makes the plan under s 70, the Director-General is first required to report to the Minister pursuant to s 69. That report must be considered before the Minister proceeds to make the local environmental planning instrument: s 70(1). | 59 |
nsw_caselaw:54a6351a3004de94513d8af1:60 | nsw_caselaw:54a6351a3004de94513d8af1 | decision | new_south_wales | nsw_caselaw | text/html | 2011-07-28 00:00:00 | Friends of Turramurra Inc v Minister for Planning [2011] NSWLEC 128 | https://www.caselaw.nsw.gov.au/decision/54a6351a3004de94513d8af1 | 2024-05-26T15:06:35.100027+10:00 | 64This necessary intervention by the Director-General in the process immediately before a draft planning instrument achieves the force of law is to my mind a matter of significance when determining whether failure to issue a certificate under s 65 invalidates a planning instrument subsequently made. It would undoubtedly be open to the Director-General or any other person to seek to restrain a council or body acting in its stead from proceeding with the statutory process of plan making if a draft local environmental plan was exhibited without a certificate issued by the Director-General or his or her delegate. However, the prospect that such action may be available does not address invalidity of a local environmental plan that has been made in the absence of such a Certificate but where otherwise the statutory steps have been observed, in particular, where the Director-General has reported to the Minister conformably with s 69 and recommended the making of the draft instrument as a local environmental plan. | 60 |
nsw_caselaw:54a6351a3004de94513d8af1:61 | nsw_caselaw:54a6351a3004de94513d8af1 | decision | new_south_wales | nsw_caselaw | text/html | 2011-07-28 00:00:00 | Friends of Turramurra Inc v Minister for Planning [2011] NSWLEC 128 | https://www.caselaw.nsw.gov.au/decision/54a6351a3004de94513d8af1 | 2024-05-26T15:06:35.100027+10:00 | 65Expressed differently, where a certificate has not been issued under s 65, it is the performance of a function of the Director-General early in the plan making process that has not occurred. However, the consequence of the failure to perform the function at that stage is able to be redressed when the same functionary, namely the Director-General, exercises the oversight function reposed in that office when preparing the report and making a recommendation to the Minister conformably with s 69. Subsection (1) of the latter section identifies the matters that are to be the subject of that report, including compliance with the provisions of s 66, while subsection (2) repeats, in substance, provisions identical to those found in s 65(1)(A), except that subsection (2) of s 69 relates to the submission of the report to the Minister rather than the issue of a certificate. | 61 |
nsw_caselaw:54a6351a3004de94513d8af1:62 | nsw_caselaw:54a6351a3004de94513d8af1 | decision | new_south_wales | nsw_caselaw | text/html | 2011-07-28 00:00:00 | Friends of Turramurra Inc v Minister for Planning [2011] NSWLEC 128 | https://www.caselaw.nsw.gov.au/decision/54a6351a3004de94513d8af1 | 2024-05-26T15:06:35.100027+10:00 | 66In light of these provisions of the EPA Act, I conclude that, on the proper construction of Div 4 of Pt 3, it was not a legislative purpose to invalidate a local environmental plan where no valid s 65 certificate has issued in respect of that plan in draft but where otherwise the plan has been made conformably with the provisions of that Division. Such a conclusion is supported by the reasons of Spigelman CJ (Sheller JA agreeing) in Smith v Wyong.
67In Smith v Wyong , the validity of a local environmental plan made under the provisions of the EPA Act was challenged. One ground of challenge was that the plan had been made in breach of a direction given by the Minister under s 117 of the EPA Act. After analysing the relevant legislative provisions and applying the principles in Project Blue Sky , the Chief Justice determined that invalidity of the plan did not result from failure to comply with the s 117 Direction. In the course of reaching that conclusion the Chief Justice said: | 62 |
nsw_caselaw:54a6351a3004de94513d8af1:63 | nsw_caselaw:54a6351a3004de94513d8af1 | decision | new_south_wales | nsw_caselaw | text/html | 2011-07-28 00:00:00 | Friends of Turramurra Inc v Minister for Planning [2011] NSWLEC 128 | https://www.caselaw.nsw.gov.au/decision/54a6351a3004de94513d8af1 | 2024-05-26T15:06:35.100027+10:00 | "[38] It is also significant that the relevant obligation is created by the Minister and not by legislation or delegated legislation. This is the same officer who ultimately determines whether a plan should be made and who has the option of deciding not to proceed with the plan (s 70(1)9(c)). The ability to regulate a failure to comply with s 117(3) is in the same hands as the person, or his or her predecessor, who made the Direction. A Minister may withdraw a direction at any time. Furthermore, as noted above, the Minister may decide to make a plan which is inconsistent with a Direction.
[39] It is, in my opinion, unlikely that Parliament intended that a failure to comply with a Direction results in invalidity when the person who made the Direction is in a position to determine the fate of the non-complying conduct." | 63 |
nsw_caselaw:54a6351a3004de94513d8af1:64 | nsw_caselaw:54a6351a3004de94513d8af1 | decision | new_south_wales | nsw_caselaw | text/html | 2011-07-28 00:00:00 | Friends of Turramurra Inc v Minister for Planning [2011] NSWLEC 128 | https://www.caselaw.nsw.gov.au/decision/54a6351a3004de94513d8af1 | 2024-05-26T15:06:35.100027+10:00 | 68Although the particular statutory provisions considered in Smith v Wyong differ in their expression from those presently being considered, the consequence of applying provisions there being considered are analogous to the consequences from applying the present provisions. The Director-General whose s 65 function has not been exercised "is the same officer who ultimately" reports to the Minister and recommends whether the power under s 70 to make a local environmental plan should be exercised. In so doing, the Director-General has a second opportunity to address the consequence, if any, of the failure to perform the earlier function. Indeed, that opportunity could result in the re-setting of the plan making process back to the s 65 stage by then issuing the requisite certificate, with or without conditions, and then requiring the steps under s 66 and those that follow to be undertaken once again. To adopt the reasoning of the Chief Justice at [39], 'it is unlikely that Parliament intended that a failure to | 64 |
nsw_caselaw:54a6351a3004de94513d8af1:65 | nsw_caselaw:54a6351a3004de94513d8af1 | decision | new_south_wales | nsw_caselaw | text/html | 2011-07-28 00:00:00 | Friends of Turramurra Inc v Minister for Planning [2011] NSWLEC 128 | https://www.caselaw.nsw.gov.au/decision/54a6351a3004de94513d8af1 | 2024-05-26T15:06:35.100027+10:00 | issue a s 65 Certificate results in invalidity when the person (Director-General) whose function was not performed as required is in a position to determine the fate of that failure'. | 65 |
nsw_caselaw:54a6351a3004de94513d8af1:66 | nsw_caselaw:54a6351a3004de94513d8af1 | decision | new_south_wales | nsw_caselaw | text/html | 2011-07-28 00:00:00 | Friends of Turramurra Inc v Minister for Planning [2011] NSWLEC 128 | https://www.caselaw.nsw.gov.au/decision/54a6351a3004de94513d8af1 | 2024-05-26T15:06:35.100027+10:00 | 69In arriving at the conclusion that he did in Smith v Wyong , Spigelman CJ applied the observations of McHugh JA (as his Honour then was) in Woods v Bates (1986) 7 NSWLR 560. The reasoning in the latter case was approved by the High Court in Project Blue Sky. In Woods v Bates , McHugh JA said (at 567):
"In recent times the courts have shown great reluctance to invalidate an act done pursuant to a statutory provision because of the failure to comply with an antecedent condition: [citation of authority omitted]. Speaking generally, I think that, at the present time, the proper approach is to regard a statutory requirement, expressed in positive language, as directory unless the purpose of the provision can only be achieved by invalidating the result of any departure from it, irrespective of the circumstances or resulting injustice: cf Hatton v Beaumont [1977] 2 NSWLR 211 at 226 per Mahoney JA." | 66 |
nsw_caselaw:54a6351a3004de94513d8af1:67 | nsw_caselaw:54a6351a3004de94513d8af1 | decision | new_south_wales | nsw_caselaw | text/html | 2011-07-28 00:00:00 | Friends of Turramurra Inc v Minister for Planning [2011] NSWLEC 128 | https://www.caselaw.nsw.gov.au/decision/54a6351a3004de94513d8af1 | 2024-05-26T15:06:35.100027+10:00 | 70Applying the observations made in Woods v Bates , it is appropriate to ask, "can the purpose of s 65 only be achieved by invalidating the result of the departure from it?" In my opinion, the answer is "no".
71It is for these reasons I discern no legislative purpose in the EPA Act to invalidate a local environmental plan, otherwise lawfully made, by reason of failure on the part of the Director-General (or his or her delegate) to have issued a certificate under s 65. As the consequences (if any) of the failure to issue the certificate must necessarily be addressed as part of the statutory process of which s 65 is an earlier component, it cannot have been the intention of Parliament that such breach would have all the adverse and potentially serious consequences sounding in a determination that the local environmental plan is invalid (cf Smith v Wyong at [26] - [29]). | 67 |
nsw_caselaw:54a6351a3004de94513d8af1:68 | nsw_caselaw:54a6351a3004de94513d8af1 | decision | new_south_wales | nsw_caselaw | text/html | 2011-07-28 00:00:00 | Friends of Turramurra Inc v Minister for Planning [2011] NSWLEC 128 | https://www.caselaw.nsw.gov.au/decision/54a6351a3004de94513d8af1 | 2024-05-26T15:06:35.100027+10:00 | Exhibition of the draft LEP: compliance with s 66 of the EPA Act
72The public exhibition and notification of a draft local environmental plan is a fundamental step in the process of plan making under Div 4 of Pt 3 of the EPA Act. Stein J (as his Honour then was) stated in Curac v Shoalhaven City Council (1993) 81 LGERA 124 at 128:
"Reasonable opportunities for public participation in plan making and in the development process are crucial to the integrity of the planning system provided under the Environmental Planning and Assessment Act ." | 68 |
nsw_caselaw:54a6351a3004de94513d8af1:69 | nsw_caselaw:54a6351a3004de94513d8af1 | decision | new_south_wales | nsw_caselaw | text/html | 2011-07-28 00:00:00 | Friends of Turramurra Inc v Minister for Planning [2011] NSWLEC 128 | https://www.caselaw.nsw.gov.au/decision/54a6351a3004de94513d8af1 | 2024-05-26T15:06:35.100027+10:00 | 73As I have already observed, s 66 of the EPA Act mandates the public exhibition of a draft local environmental plan. Given the significance placed upon the requirements of this section by the applicant in identifying the various bases upon which this ground of challenge is sought to be sustained, it is necessary to quote the section in full. In the form that it took at the date of the Panel's resolution to publicly exhibit the draft Centres LEP, namely 5 November 2008, the section relevantly provided as follows:
" 66 Public exhibition of draft local environmental plan
(1) Where a council receives a certificate under section 65 with respect to a draft local environmental plan, it shall, after complying with any condition subject to which the certificate was granted and subject to the regulations:
(a) give public notice, in a form and manner determined by the council, of the place at which, the dates on which, and the times during which, the ... draft local environmental plan may be inspected by the public, | 69 |
nsw_caselaw:54a6351a3004de94513d8af1:70 | nsw_caselaw:54a6351a3004de94513d8af1 | decision | new_south_wales | nsw_caselaw | text/html | 2011-07-28 00:00:00 | Friends of Turramurra Inc v Minister for Planning [2011] NSWLEC 128 | https://www.caselaw.nsw.gov.au/decision/54a6351a3004de94513d8af1 | 2024-05-26T15:06:35.100027+10:00 | (b) publicly exhibit at the place, on the dates and during the times set out in the notice:
(i) a copy of that ... draft local environmental plan,
(ii) a copy of any standard instrument, environmental planning instrument or direction under s 117 that substantially governs the content and operation of the draft local environmental plan (or provide for access to such copy), and
(iii) a statement to the effect that any such standard instrument, environmental planning instrument or direction substantially governs the content and operation of the draft local environmental plan and that any submissions made pursuant to s 67 should be made having regard to that fact,
(c) specify in the notice, the period (being a period which is or includes the period referred to in subsection (2)) during which submissions may be made to the council in accordance with section 67, and
(d) publicly exhibit such other matter as it considers appropriate or necessary to better enable the draft plan and its implications to be understood. | 70 |
nsw_caselaw:54a6351a3004de94513d8af1:71 | nsw_caselaw:54a6351a3004de94513d8af1 | decision | new_south_wales | nsw_caselaw | text/html | 2011-07-28 00:00:00 | Friends of Turramurra Inc v Minister for Planning [2011] NSWLEC 128 | https://www.caselaw.nsw.gov.au/decision/54a6351a3004de94513d8af1 | 2024-05-26T15:06:35.100027+10:00 | (2) A draft local environmental plan shall be publicly exhibited for a period being not less than the prescribed period.
(3) Where, for the purposes of informing the public generally, a council decides to publicly exhibit a draft local environmental plan otherwise than in accordance with subsection (1), or to publicly exhibit any other matter which could be construed or represented as having a similar purpose to a draft local environmental plan, it shall at the same time publicly exhibit a statement to the effect that the exhibition is not to be regarded as an exhibition for the purposes of this Act."
74In Homeworld Ballina Pty Ltd v Ballina Shire Council [2010] NSWCA 65; (2010) 172 LGERA 211, the Court of Appeal identified two purposes that are served by exhibition pursuant to s 66. They were identified at [11] as follows: | 71 |
nsw_caselaw:54a6351a3004de94513d8af1:72 | nsw_caselaw:54a6351a3004de94513d8af1 | decision | new_south_wales | nsw_caselaw | text/html | 2011-07-28 00:00:00 | Friends of Turramurra Inc v Minister for Planning [2011] NSWLEC 128 | https://www.caselaw.nsw.gov.au/decision/54a6351a3004de94513d8af1 | 2024-05-26T15:06:35.100027+10:00 | "The purpose of the exhibition itself is no doubt twofold: first, it allows for the public to be informed about a new LEP or changes to an existing plan. Secondly, it will provide an opportunity for those members of the public who wish to do so to make written submissions to the Council with respect to the provisions of the draft plan as publicly exhibited: s 67. Those submissions may result in a public hearing if the issues raised are of sufficient significance: s 68. These sections form an important mechanism for giving effect to one of the principal objects of the Act, namely to provide 'increased opportunity for public involvement and participation in environmental planning and assessment': s 5(c)." | 72 |
nsw_caselaw:54a6351a3004de94513d8af1:73 | nsw_caselaw:54a6351a3004de94513d8af1 | decision | new_south_wales | nsw_caselaw | text/html | 2011-07-28 00:00:00 | Friends of Turramurra Inc v Minister for Planning [2011] NSWLEC 128 | https://www.caselaw.nsw.gov.au/decision/54a6351a3004de94513d8af1 | 2024-05-26T15:06:35.100027+10:00 | 75There are a number of alternate bases upon which the applicant submits that such public exhibition and notification as did take place did not comply with the requirements of s 66. The totality of its submissions in this regard are captured by the statement that the exhibition was "incomplete, invalid and misleading". In order to understand the submission of the parties, it will be necessary to refer to the facts surrounding the exhibition in greater detail than I have earlier indicated. | 73 |
nsw_caselaw:54a6351a3004de94513d8af1:74 | nsw_caselaw:54a6351a3004de94513d8af1 | decision | new_south_wales | nsw_caselaw | text/html | 2011-07-28 00:00:00 | Friends of Turramurra Inc v Minister for Planning [2011] NSWLEC 128 | https://www.caselaw.nsw.gov.au/decision/54a6351a3004de94513d8af1 | 2024-05-26T15:06:35.100027+10:00 | 76At an early stage in the preparation of the draft Centres LEP, the Panel had before it a report prepared by Council staff addressing the means by which publication and notification would be provided in respect of the draft implement when it was finally adopted for exhibition by the Panel. These matters were reflected in a report dated 19 March 2008 ( the March 2008 Report ) which was provided to members of the Panel for consideration at its meeting held on 26 March. The resolution of the Panel was to proceed with preparation of a "revised Ku-ring-gai Town Centres draft local environmental plan" in terms of the recommendation made to it in the March 2008 report. The resolution does not, in terms, adopt the report as a whole. It is silent in that regard. | 74 |
nsw_caselaw:54a6351a3004de94513d8af1:75 | nsw_caselaw:54a6351a3004de94513d8af1 | decision | new_south_wales | nsw_caselaw | text/html | 2011-07-28 00:00:00 | Friends of Turramurra Inc v Minister for Planning [2011] NSWLEC 128 | https://www.caselaw.nsw.gov.au/decision/54a6351a3004de94513d8af1 | 2024-05-26T15:06:35.100027+10:00 | 77The October 2008 Report was, as I have earlier indicated, before the Panel on 5 November 2008 when it resolved to exhibit the draft Centres LEP. In that Report there was reference to a consultation program that had already been undertaken in accordance with earlier recommendations of the Panel. That Report also identified what was described as "the consultation program for exhibition" for the draft Centres LEP.
78Once again, the Panel did not, in terms, resolve to adopt the consultation program for exhibition" outlined in the October 2008 Report. The resolutions passed at its meeting on 5 November are in identical terms to those recommendations made to it by the Panel. The terms in which the first of its resolutions adopting the draft Centres LEP for exhibition has earlier been quoted. Two further resolutions of the Panel at that meeting and relevant for present purposes should be noted. They are - | 75 |
nsw_caselaw:54a6351a3004de94513d8af1:76 | nsw_caselaw:54a6351a3004de94513d8af1 | decision | new_south_wales | nsw_caselaw | text/html | 2011-07-28 00:00:00 | Friends of Turramurra Inc v Minister for Planning [2011] NSWLEC 128 | https://www.caselaw.nsw.gov.au/decision/54a6351a3004de94513d8af1 | 2024-05-26T15:06:35.100027+10:00 | "B. That Ku-ring-gai Planning Panel exhibit the draft Ku-ring-gai (Town Centres) Local Environmental Plan 2008 for a minimum period of 28 days.
C. That the draft Ku-ring-gai (Town Centres) Local Environmental Plan 2008 be exhibited in accordance with the Best Practice Guidelines published by the Department of Urban Affairs and Planning in January 1997 titled ' LEPs and Council Owned Land - Guidelines for Councils using delegated powers to prepare LEPs involving land that is or was previously owned or controlled by a Council' ."
Having regard to the terms of the three resolutions specifically directed to exhibition, the fact that these resolutions are identical to the recommendations made in the October 2008 report and the steps directed to exhibition were outlined in that report are matters that lead me to conclude that the Panel intended exhibition to take place as the Report indicated would be the case. | 76 |
nsw_caselaw:54a6351a3004de94513d8af1:77 | nsw_caselaw:54a6351a3004de94513d8af1 | decision | new_south_wales | nsw_caselaw | text/html | 2011-07-28 00:00:00 | Friends of Turramurra Inc v Minister for Planning [2011] NSWLEC 128 | https://www.caselaw.nsw.gov.au/decision/54a6351a3004de94513d8af1 | 2024-05-26T15:06:35.100027+10:00 | 79On 7 November 2008 letters were sent on behalf of the Panel to persons falling into five categories. Two of those were owners and occupiers respectively of properties located within the boundaries of each of the identified town centres; two were sent to the owners and occupiers respectively of properties identified as being within the vicinity of the boundaries of each of the identified town centres and the fifth category involved the remaining owners or occupiers of property located within the Ku-ring-gai local government area. According to the evidence of Mr Fabbro, approximately 45,000 letters were sent on behalf of the Panel. While the text of each letter varied slightly for each of the five categories of recipient, common to each of them were paragraphs in or to the following effect:
"The Ku-ring-gai Planning Panel has resolved to exhibit and seek public comment on the draft Ku-ring-gai local environmental plan (LEP) 2008 (Draft LEP).
... | 77 |
nsw_caselaw:54a6351a3004de94513d8af1:78 | nsw_caselaw:54a6351a3004de94513d8af1 | decision | new_south_wales | nsw_caselaw | text/html | 2011-07-28 00:00:00 | Friends of Turramurra Inc v Minister for Planning [2011] NSWLEC 128 | https://www.caselaw.nsw.gov.au/decision/54a6351a3004de94513d8af1 | 2024-05-26T15:06:35.100027+10:00 | The Draft LEP with supporting information which includes background reports and maps, will be on exhibition from Monday 17 November to Friday 19 December 2008.
...
A formal staffed display of the Statutory Exhibition (Section 66 Environmental Planning and Assessment Act 1979) of the Draft Plan with supporting material can be viewed at the Council Chambers, Level 3, 818 Pacific Highway, Gordon, from 8.30am to 5.00pm Monday to Friday.
The Draft Plans are available on Council's website at www.kmc.nsw.gov.au as from Monday 17 November 2008.
Key exhibition materials will be on display at Council's Libraries located at St Ives, Gordon, Turramurra and Lindfield. Library hours are available on Council's website."
Each letter was headed -
" EXHIBITION OF DRAFT KU-RING-GAI LOCAL ENVIRONMENTAL PLAN (TOWN CENTRES) 2008 ". | 78 |
nsw_caselaw:54a6351a3004de94513d8af1:79 | nsw_caselaw:54a6351a3004de94513d8af1 | decision | new_south_wales | nsw_caselaw | text/html | 2011-07-28 00:00:00 | Friends of Turramurra Inc v Minister for Planning [2011] NSWLEC 128 | https://www.caselaw.nsw.gov.au/decision/54a6351a3004de94513d8af1 | 2024-05-26T15:06:35.100027+10:00 | 80Exhibition of the draft Centres LEP was advertised in the North Shore Times newspaper on each of 14, 19 and 28 November and again on 17 December 2008. This advertisement referred to the resolution of the Panel to exhibit the draft Centres LEP in accordance with s 66 of the EPA Act. After briefly describing the land to which it applied and its purpose, the period of exhibition from Monday November 17 to Friday December 19 2008 was indicated. Under the heading "Viewing the Draft LEP", the advertisement contained the following statement:
"The Draft LEP and supporting material will be on exhibition at Council Chambers, Level 3, 818 Pacific Highway, Gordon, from 8.30am to 5.00pm Monday to Friday. Key exhibition materials will also be on display at Council's libraries at St Ives, Gordon, Turramurra and Lindfield during library hours and on Council's website www.kmc.nsw.gov.au/exhibition". | 79 |
nsw_caselaw:54a6351a3004de94513d8af1:80 | nsw_caselaw:54a6351a3004de94513d8af1 | decision | new_south_wales | nsw_caselaw | text/html | 2011-07-28 00:00:00 | Friends of Turramurra Inc v Minister for Planning [2011] NSWLEC 128 | https://www.caselaw.nsw.gov.au/decision/54a6351a3004de94513d8af1 | 2024-05-26T15:06:35.100027+10:00 | 81It is not disputed that prior to 17 November 2008 an area was set aside on Level 3 of the building accommodating the offices and the Chambers of the Council at 818 Pacific Highway, Gordon. The area set aside for exhibition included a counter on which there were three folders. One folder was entitled "Draft Ku-ring-gai LEP (Town Centres) 2008 Exhibition Material: A", while each of the remaining two folders were titled "Draft Ku-ring-gai LEP (Town Centres) 2008 Supporting Documentation" volumes 1 and 2 respectively. Included in the first folder to which I have referred was both the draft local environmental plan itself, together with the maps to which it referred. Spare copies of the draft as well as maps were also placed on the counter. | 80 |
nsw_caselaw:54a6351a3004de94513d8af1:81 | nsw_caselaw:54a6351a3004de94513d8af1 | decision | new_south_wales | nsw_caselaw | text/html | 2011-07-28 00:00:00 | Friends of Turramurra Inc v Minister for Planning [2011] NSWLEC 128 | https://www.caselaw.nsw.gov.au/decision/54a6351a3004de94513d8af1 | 2024-05-26T15:06:35.100027+10:00 | 82Some 18 exhibition panels were located in this same room. These panels contained both text as well as architectural images of block models identified as relating to "key sites" envisaged by the draft instrument. In addition, a television screen displayed a moving aerial view of block images of each of the town centres, intended to demonstrate the scale of development anticipated under the draft instrument.
83Throughout the exhibition period of this material on Level 3, a member of the Council's planning staff was present at all times. This occurred each working day between 8.30am and 5.00pm. | 81 |
nsw_caselaw:54a6351a3004de94513d8af1:82 | nsw_caselaw:54a6351a3004de94513d8af1 | decision | new_south_wales | nsw_caselaw | text/html | 2011-07-28 00:00:00 | Friends of Turramurra Inc v Minister for Planning [2011] NSWLEC 128 | https://www.caselaw.nsw.gov.au/decision/54a6351a3004de94513d8af1 | 2024-05-26T15:06:35.100027+10:00 | 84As the letters sent on behalf of the Council and newspaper advertisements had indicated, documents were displayed at Council owned libraries at St Ives, Gordon, Turramurra and Lindfield. In addition to a copy of the draft Centres LEP and the maps to which it referred, this material also included the October 2008 Report together with a set of four large laminated display panels containing general information about the draft local environmental plan. Each panel contained an architectural block image reflecting the town centre precinct proximate to the library in which the material was displayed. At each library location an adhesive sticker was affixed to the material, which contained the following: | 82 |
nsw_caselaw:54a6351a3004de94513d8af1:83 | nsw_caselaw:54a6351a3004de94513d8af1 | decision | new_south_wales | nsw_caselaw | text/html | 2011-07-28 00:00:00 | Friends of Turramurra Inc v Minister for Planning [2011] NSWLEC 128 | https://www.caselaw.nsw.gov.au/decision/54a6351a3004de94513d8af1 | 2024-05-26T15:06:35.100027+10:00 | "The information on this display contains the key exhibition material for the Draft KLEP (Town Centres), however it is not the statutory exhibition under Section 66 of the Environmental Planning and Assessment Act 1979. The statutory exhibition is on display at the Ku-ring-gai Council Chambers 818 Pacific Highway Gordon during the exhibition period - 17 November 2008 to 19 December 2008."
85Prior to commencement of the exhibition period for the draft Centres LEP, Mr Fabbro arranged for documents described as "key materials" to be reduced to a digital format and then recorded on a DVD. The materials contained on the DVD did not include all the material that was exhibited at the Council's Chambers, but did include a copy of the draft instrument and maps. Copies of these DVDs were available to those who requested them at both the Council Chambers during the exhibition period and also at the Council libraries. | 83 |
nsw_caselaw:54a6351a3004de94513d8af1:84 | nsw_caselaw:54a6351a3004de94513d8af1 | decision | new_south_wales | nsw_caselaw | text/html | 2011-07-28 00:00:00 | Friends of Turramurra Inc v Minister for Planning [2011] NSWLEC 128 | https://www.caselaw.nsw.gov.au/decision/54a6351a3004de94513d8af1 | 2024-05-26T15:06:35.100027+10:00 | 86On 14 November 2008 copies of the DVD were sent to the owners and occupiers of all properties both within and in the vicinity of the boundaries of each of the Town Centres. These DVDs were contained in a sleeve or jacket on which was a statement that included the following:
"The Ku-ring-gai Planning Panel is seeking your comments on the Draft Local Environmental Plan (Town Centres) 2008. All of the key exhibition material is provided to you on this DVD. The information will help you understand the work undertaken by the Panel and Council so you may make an informed submission, should you choose to.
The Draft LEP and supporting information will be on exhibition from Monday 17 November until Friday 19 December 2008. This will be available for viewing at the Council Chambers, 818 Pacific Highway, Gordon and information will also be available at Council's libraries, located at St Ives, Gordon, Turramurra and Lindfield. The Draft plan may also viewed on Council's website ...". | 84 |
nsw_caselaw:54a6351a3004de94513d8af1:85 | nsw_caselaw:54a6351a3004de94513d8af1 | decision | new_south_wales | nsw_caselaw | text/html | 2011-07-28 00:00:00 | Friends of Turramurra Inc v Minister for Planning [2011] NSWLEC 128 | https://www.caselaw.nsw.gov.au/decision/54a6351a3004de94513d8af1 | 2024-05-26T15:06:35.100027+10:00 | 87Upon being accessed by computer, the material contained in the DVD was preceded by a display in the following terms:
"Disclaimer: The information on this DVD contains the key exhibition material for the Draft KLEP (Town Centres) 2008, however it is not the statutory exhibition under Section 66 of the Environmental Planning and Assessment Act 1979. The statutory exhibition is on display at Ku-ring-gai Council Chambers 818 Pacific Highway, Gordon during the exhibition period."
88As the various letters, notices and advertisements to which I have referred indicate, material relevant to the exhibition was also available on the Council's website. It is not suggested by the Minister that all material exhibited at the Council's chambers could be accessed on that website. The introductory page of that website contained a statement that included the following: | 85 |
nsw_caselaw:54a6351a3004de94513d8af1:86 | nsw_caselaw:54a6351a3004de94513d8af1 | decision | new_south_wales | nsw_caselaw | text/html | 2011-07-28 00:00:00 | Friends of Turramurra Inc v Minister for Planning [2011] NSWLEC 128 | https://www.caselaw.nsw.gov.au/decision/54a6351a3004de94513d8af1 | 2024-05-26T15:06:35.100027+10:00 | "The Ku-ring-gai Planning Panel has resolved to exhibit and seek public comment on the draft Ku-ring-gai Local Environmental Plan (Town Centres) 2008 (draft LEP) in accordance with section 66 of the Environmental Planning and Assessment Act 1979.
...
The draft LEP with supporting information, background reports and maps will be on exhibition from Monday 17 November to Friday 19 December 2008.
The draft LEP and supporting material will be on exhibition at the Council Chambers, Level 3, 818 Pacific Highway, Gordon, from 8.30am to 5.00pm Monday to Friday.
Key exhibition materials will also be on display at Council's libraries located at St Ives, Gordon, Turramurra and Lindfield during library hours." | 86 |
nsw_caselaw:54a6351a3004de94513d8af1:87 | nsw_caselaw:54a6351a3004de94513d8af1 | decision | new_south_wales | nsw_caselaw | text/html | 2011-07-28 00:00:00 | Friends of Turramurra Inc v Minister for Planning [2011] NSWLEC 128 | https://www.caselaw.nsw.gov.au/decision/54a6351a3004de94513d8af1 | 2024-05-26T15:06:35.100027+10:00 | 89It has been necessary to refer to the manner of exhibition and notification in its various forms by reason of the submission made on behalf of the applicant that the exhibition was misleading and therefore led to invalidity of the planning instrument. Without intending disservice to the submission, it turns, in large measure, upon the difference in material displayed at the Council's Chambers on the one hand and at libraries on the other. Related to that distinction is reference to "key exhibition materials" as being available at the libraries or on the DVD without those materials being exhaustive of what the applicant submits is required. However, that general observation does not reflect the different bases upon which the validity of the exhibition is challenged and it is to those matters that I now turn. | 87 |
nsw_caselaw:54a6351a3004de94513d8af1:88 | nsw_caselaw:54a6351a3004de94513d8af1 | decision | new_south_wales | nsw_caselaw | text/html | 2011-07-28 00:00:00 | Friends of Turramurra Inc v Minister for Planning [2011] NSWLEC 128 | https://www.caselaw.nsw.gov.au/decision/54a6351a3004de94513d8af1 | 2024-05-26T15:06:35.100027+10:00 | Failure to comply with exhibition requirements pertaining to SEPPs and REPs | 88 |
nsw_caselaw:54a6351a3004de94513d8af1:89 | nsw_caselaw:54a6351a3004de94513d8af1 | decision | new_south_wales | nsw_caselaw | text/html | 2011-07-28 00:00:00 | Friends of Turramurra Inc v Minister for Planning [2011] NSWLEC 128 | https://www.caselaw.nsw.gov.au/decision/54a6351a3004de94513d8af1 | 2024-05-26T15:06:35.100027+10:00 | 90It will be noticed from the provisions of s 66(1)(b) that documents required to be publicly exhibited "at the place, on the dates and during the times" identified in the public notice of exhibition include a copy of any environmental planning instrument that "substantially governs the content and operation" of the draft local environmental plan being exhibited (paragraph (ii)) together with a statement that any such environmental planning instrument substantially governs the content and operation of the exhibited draft local environmental plan and that any submission made pursuant to s 67 "should be made having regard to that fact" (paragraph (iii)). It is submitted by the applicant that these requirements were not met as they related to the requirement for exhibition of State environmental planning policies ( SEPPs ) and regional environmental plans ( REPs ). Included in Folder 1 bearing the label Draft Ku-ring-gai LEP (Town Centres) 2008 Exhibition Material: "A" ( the Statutory Exhibition Bundle ), | 89 |
nsw_caselaw:54a6351a3004de94513d8af1:90 | nsw_caselaw:54a6351a3004de94513d8af1 | decision | new_south_wales | nsw_caselaw | text/html | 2011-07-28 00:00:00 | Friends of Turramurra Inc v Minister for Planning [2011] NSWLEC 128 | https://www.caselaw.nsw.gov.au/decision/54a6351a3004de94513d8af1 | 2024-05-26T15:06:35.100027+10:00 | available at the Council's chambers at the exhibition site and throughout the exhibition period were several documents relevant to this ground of challenge. Behind Tab 1 in the Statutory Exhibition Bundle was a document summarising the reasons for preparation of the draft Centres LEP, the exhibition process and the capacity to make submissions. Included in that document is the following statement: | 90 |
nsw_caselaw:54a6351a3004de94513d8af1:91 | nsw_caselaw:54a6351a3004de94513d8af1 | decision | new_south_wales | nsw_caselaw | text/html | 2011-07-28 00:00:00 | Friends of Turramurra Inc v Minister for Planning [2011] NSWLEC 128 | https://www.caselaw.nsw.gov.au/decision/54a6351a3004de94513d8af1 | 2024-05-26T15:06:35.100027+10:00 | "The standard instrument, relevant environmental planning instruments and s. 117 directions substantially govern the content and operation of the draft local environmental plan and under s 66(1)(b)(iii) of the Environmental Planning and Assessment Act 1979, any submissions made pursuant to section 67 of that Act should be made having regard to that fact."
91Behind Tab 9 of the Statutory Exhibition Bundle is a document that included a list of the then current SEPPs and REPs. Beside each of the listed instruments is a tick indicating whether or not the instrument is relevant and, if relevant, whether the draft local environmental plan is consistent with it. At the end of the list the following statement appears:
"NOTE: State Environmental Planning Policies and Regional Environmental Plans may be viewed at the Department of Planning Information Centre, 23 - 33 Bridge Street, Sydney, 9.00am - 5.00pm Monday to Friday (ph 92286333) or the Department's website www.planning.nsw.gov.au." | 91 |
nsw_caselaw:54a6351a3004de94513d8af1:92 | nsw_caselaw:54a6351a3004de94513d8af1 | decision | new_south_wales | nsw_caselaw | text/html | 2011-07-28 00:00:00 | Friends of Turramurra Inc v Minister for Planning [2011] NSWLEC 128 | https://www.caselaw.nsw.gov.au/decision/54a6351a3004de94513d8af1 | 2024-05-26T15:06:35.100027+10:00 | 92At Tab 11 of the Statutory Exhibition Bundle is a single page document in two parts. The first part is headed "Relevant State Environmental Planning Policies" and beneath that heading there are listed nine SEPPs, the name and number (where relevant) of which are given. Beneath the second heading that reads "Relevant Regional Environmental Plans" are listed by name two regional environmental plans. Beneath the listing of "relevant" SEPPs and REPs is a statement indicating where access to these instruments might be had, that statement being expressed in the same terms as that appearing at the foot of the documents found behind Tab 9, the terms of which statement I have already quoted. | 92 |
nsw_caselaw:54a6351a3004de94513d8af1:93 | nsw_caselaw:54a6351a3004de94513d8af1 | decision | new_south_wales | nsw_caselaw | text/html | 2011-07-28 00:00:00 | Friends of Turramurra Inc v Minister for Planning [2011] NSWLEC 128 | https://www.caselaw.nsw.gov.au/decision/54a6351a3004de94513d8af1 | 2024-05-26T15:06:35.100027+10:00 | 93Compliance with the requirements of s 66(1)(b)(ii) and (iii) is unquestionably essential ( Smith v Wyong per Spigelman CJ at [59] and Tobias JA at [176]). It fulfils one of the objects of the EPA Act, namely that expressed in s 5(c), the relevant terms of which I have earlier quoted. Moreover, matters to which submissions in response to the public advertisement of the draft instrument are to have regard are those s 117 directions and other environmental planning instruments that substantially govern the draft planning instrument that has been advertised: 66(1)(b)(iii). Thus the importance of identifying those directions and other planning instruments that substantially govern the content of the advertised draft instrument. | 93 |