BURWOOD COUNCIL v PD MAYOH PTY LTD and ANOR [1997] NSWCA 54

BURWOOD COUNCIL v PD MAYOH PTY LTD and ANOR

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

PRIESTLEY, BEAZLEY JJA AND CLARKE AJA 27 May 1997, 30 September 1997

[1997] NSWCA 54

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 LGERA PE 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.