MINISTER ADMINISTERING THE ENVIRONMENTAL PLANNING AND ASSESSMENT ACT 1979 v LLOYD and ANOR [1993] NSWCA 182

MINISTER ADMINISTERING THE ENVIRONMENTAL PLANNING AND ASSESSMENT ACT 1979 y LLOYD

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

MAHONEY AP, HANDLEY and CRIPPS JJA 6 May 1993, 6 August 1993

[1993] NSWCA 182

Land owned by the respondent was zoned county open space, which under the Illawarra Planning Scheme Ordinance prohibited the respondent from building on the land without consent. The respondent sought an order requiring the Minister to resume the land. The right to have the land resumed depended upon CL18 of the Ordinance which provided:

"(1) The owner of the land reserved under Division 2 or 3 of this Part upon which the erection of any building or the carrying out or alteration of any work of a permanent character or the making or alteration of any permanent excavation is prohibited except for or incidental to a purpose for which the land is so reserved or the owner of any land so reserved in respect of which the responsible authority has refused its consent pursuant to subCL(2) of CL10 or pursuant to subCL(2) of CL10 or pursuant to subCL(2) of CL13 of this Ordinance may, by notice in writing, require the responsible authority to acquire such land."

A further issue was whether CL18 was restricted in its application due to the effect of CL10(2) which allows the responsible authority to consent to development on land where it appears to the responsible authority that the purpose for which the land has been reserved cannot be carried into effect within a reasonable time after the appointed day.

Held: Per Mahoney JA (Handley JA concurring):

The reserved use as open space is achieved in a practical sense merely by the land being open space. The Minister's argument (to bring the case within CL10(2)) that the reserved use can only be achieved by the land being vested in the Minister depends upon an interpretation of CL10(2) other than a literal interpretation. A literal interpretation requires the responsible authority to consider objective facts and give to the phrase "cannot be carried into effect" a meaning involving possibility rather than expediency or the like.