Land and Environment Court of New South Wales CITATION : Hawkesbury City Council v NSW Minister for Infrastructure & Planning & Anor [2004] NSWLEC 188 APPLICANT Hawkesbury City Council FIRST RESPONDENT PARTIES : NSW Minister for Infrastructure & Planning & Anor SECOND RESPONDENT Director-General of the Department of Infrastructure, Planning & Natural Resources FILE NUMBER(S) : 41646 of 2003 CORAM: Pain J KEY ISSUES: Judicial Review :- whether Local Environmental Plan invalid - whether Local Environment Plan made by Minister was plan exhibited by Council - whether Local Environment Plan made by Minister was plan on which the Council reported to the Director General LEGISLATION CITED: Environmental Planning Assessment Act 1979, s 64, s 66, s 68, s 69, s 70 Hawkesbury Local Environmental Plan 1989 (Amendment No 126) CASES CITED: Leichhardt Municipal Council v The Minister for Planning [No 2] (1995) 87 LGRA 78 DATES OF HEARING: 11/03/2004 EX TEMPORE 03/11/2004 JUDGMENT DATE : APPLICANT Ms S Duggan SOLICITORS Abbott Tout LEGAL REPRESENTATIVES: FIRST AND SECOND RESPONDENTS Ms J Jagot SOLICITORS Department of Infrastructure Planning and Natural Resources JUDGMENT: IN THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES 41646 of 2003 Pain J 11 March 2004 HAWKESBURY CITY COUNCIL Applicant v NSW MINISTER FOR INFRASTRUCTURE & PLANNING First Respondent DIRECTOR-GENERAL OF THE DEPARTMENT OF INFRASTRUCTURE, PLANNING & NATURAL RESOURCES Second Respondent Judgment 1. The Applicant Council seeks a declaration that the Hawkesbury Local Environmental Plan 1989 (Amendment No 126) made by the Minister, the First Respondent, on 14 November 2003 is invalid. The Minister has admitted the essential factual matters relevant to the claim as contained in par 1-9 of the Points of Claim filed by the Applicant. There is also a Statement of Agreed Facts which provides further detail about the processes followed by the parties in relation to the making of the Hawkesbury Local Environmental Plan 1989 (Amendment No 126) (the LEP Amendment). 2. The essential question before me is whether the LEP Amendment made by the Minister is: (a) the plan which was exhibited by the Council under s 66 of the Environmental Planning Assessment Act 1979 (the EP&A Act); and (b) the plan in relation to which the Council reported to the Director General under s 68 of the EP&A Act. 3. The Minister has admitted two material differences between the draft exhibited plan and the final plan made by him. These differences relate to the transposition of minimum lot sizes between different zones and to the alteration of the area of land which is flood-prone which is available for subdivision. Additional changes relied on by the Council, but not admitted by the Minister, relate to the treatment of the lot averaging provisions and the imposition of more restrictive provisions concerning the subdivision of land within a regionally significant wetland. 4. On the evidence these changes were made to the draft plan after the plan was submitted by the Council to the Director General pursuant to s 64 of the EP&A Act but before the preparation of the s 69 report dated 17 September 2003 by the Director General for the Minister. 5. The Director General has no power to amend or alter a draft Local Environmental Plan submitted pursuant to s 64 of the EP&A Act. I particularly note that the Statement of Agreed Facts records in par 10 that, in furnishing the s 69 report to the Minister the Director General was not aware that the second draft plan had transposed the minimum allotment sizes between the 7(d) and 7(d1) zones, nor that the effect of cl 11(4)(b) of the draft plan had been altered so that the area above the one in hundred year flood level was required to be all of the land to be subdivided, rather than an area sufficient for the erection of a dwelling house. 6. Both parties submitted that the relevant principle is that contained in the decision of Priestley JA in the matter of Leichhardt Municipal Council v The Minister for Planning [No 2] (1995) 87 LGRA 78 at 88, where he concluded that the Minister did not have the power, on the facts of that case, to make the plan because it was not a plan which was, in all important respects, the product of a Pt 3 Div 3 process. Section 66 of Div 3 of Pt 3 of the EP&A Act contains the mandatory public exhibition provisions for draft environmental planning instruments. Section 68(4), which is also relevant, contains the Council's reporting obligations in relation to the submissions received on the exhibited plan. 7. In my view, the answer is clearly no to the essential question posed based on the changes both in the draft and final plan as admitted by the Minister, so that the LEP Amendment is not: (a) the plan exhibited by the Council pursuant to s 66 of the EP&A Act; and (b) the plan in relation to which the Council reported to the Director General under s 68. 8. The additional differences identified by the Council, although not admitted by the Minister, further strengthen the Council's case. I consider all the changes to be so material that the whole of the plan is invalid. Applying the principle enunciated by Priestley JA, the final plan made by the Minister is not the same as the plan which was the product of the Pt 3 Div 3 process set out in the EP&A Act. 9. The s 69 report submitted to the Minister by the Director General was not a report on the LEP Amendment submitted pursuant to s 68(iv) of the EP&A Act but was, in effect, about another plan. While there is provision for the final plan to be changed by the Minister under s 70(1)(a)(ii) of the EP&A Act, there is no evidence or suggestion that the Minister made a decision to so amend the final plan pursuant to that section. 10. The Council is seeking two declarations, which I intend to make. The first is to declare the Hawkesbury Local Environmental Plan 26 void and of no effect. The second declaration is intended to return the parties to the position that they were in before the preparation of the Director General's report to the Minister dated 17 September 2003. The declaration also provides that there has been no exercise of any function by the Minister under s 70 of the EP&A Act. 11. Turning now to the issue of costs, the Council seeks its costs of these proceedings and, while the Council's costs application was opposed by the Respondents, no argument in support of that opposing submission was made by the Respondents. These are Class 4 proceedings in which the Council has been successful in obtaining the two declarations which it seeks. The usual costs order in this Court in these circumstances is that costs should be awarded in the Council's favour. I make the usual costs order. Orders and declarations 12. The Court makes the following orders and declarations: 1. A declaration that Hawkesbury Local Environmental Plan 1989 (Amendment No 126), as published in the NSW Government Gazette No 179 of 14 November 2003 is void and of no effect. 2. A declaration that draft amendment 126 to the Hawkesbury Local Environmental Plan 1989, as submitted to the Director-General of the Department of Infrastructure, Planning and Natural Resources on 19 March 2003: (a) has not been the subject of any report prepared by the Director-General and furnished to the Minister under s 69 of the EPA Act; and (b) has not been the subject of the exercise of any function by the Minister under s 70 of the EPA Act. 3. The Respondents are to pay the Applicant's costs of these proceedings. 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.