BURWOOD COUNCIL v PD MAYOH PTY LTD [1997] NSWCA 53

BURWOOD COUNCIL v PD MAYOH PTY LTD SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

PRIESTLEY, BEAZLEY JJA AND CLARKE AJA

27 May 1997, 30 September 1997

PRECEDENT — DECISION OF COURT OF APPEAL — LOWER COURTS BOUND TO FOLLOW.

On 17 May 1995 the Court of Appeal declared a Regional Environment Plan (REP) to be invalidly made, as certain alterations to Pt2 of the REP had been made outside the powers conferred by the Environmental Planning and Assessment Act. The appellant sought declarations that certain development consents granted by the second respondent in accordance with Pt3 of the REP were void. The trial judge refused to make the declarations.

On appeal: It was submitted by the appellants: 1. that the Court of Appeal's judgment operated in rem; and,

2. even if the Court of Appeal's judgment did not operate in rem, the trial judge was bound to hold that the REP had been invalidly made and to grant the relief sought.

Held:

1. It was not necessary to decide the first ground.

2. The Court of Appeal had declared that the REP had been invalidly made, not that it was partially invalid. Therefore, it was not open to the trial judge to come to the decision to which he did.

Cases Derisi v Vaughan (1983) 3 NSWLR 17

Great Western Railway Co v Owners of SS Mostyn (The Mostyn) [1928] AC 57 Hoffman - La Roche & Co v Secretary of State for Training and Industry [1975] AC 295 Leichhardt Municipal Council v The Minister for Planning (1995) 87 LGERAPE Bakers Pty Ltd v Yehuda (1988) 15 NSWLR 437 Swane v Marsh (Unreported New South Wales Court of Appeal 18 October 1978) Tyler; Ex parte Foley (1993-94) 181 CLR 18

Priestley JA I have had the benefit of reading Clarke AJA's draft reasons in this appeal and agree with them. In my opinion they clearly show that the appeal should be upheld.

I wish however to mention an additional matter. A proposition adopted by the trial judge, and essential to his decision, was that Pt3 of the REP (relating to land in the Burwood Municipality) was severable from Pt2 of the REP dealing with land in the Leichhardt Municipality. The areas dealt with by the two Parts are some distance apart and at first I was inclined to think the severability proposition was well founded. In the course of the argument in the hearing of the appeal I began to wonder whether the court was justified in assuming the correctness of the severability proposition simply upon a reading of the REP itself. This led to the following discussion taking place with counsel for the respondent: