Land and Environment Court of New South Wales CITATION : Capital Airport Group Pty Limited v Director-General of the Department of Planning [2009] NSWLEC 215 APPLICANT Capital Airport Group Pty Limited FIRST RESPONDENT Director-General of the Department of Planning PARTIES : SECOND RESPONDENT Queanbeyan City Council THIRD RESPONDENT Canberra Estates Consortium No 4 Pty Limited FILE NUMBER(S) : 40854 of 2009 CORAM: Preston CJ KEY ISSUES: INJUNCTIONS AND DECLARATIONS :- interlocutory injunction - application to restrain public exhibition of draft local environmental plan - serious question to be tried as to whether draft LEP a pending LEP under unamended statute - balance of convenience favours not granting interlocutory injunction - final hearing expedited LEGISLATION CITED: Environmental Planning and Assessment Act 1979, s 54, s 64, s 65, s 66, Sch 6 cl 122 Environmental Planning and Assessment Amendment Act 2008 DATES OF HEARING: 13 November 2009 EX TEMPORE JUDGMENT DATE : 13 November 2009 APPLICANT Ms M N Allars (barrister) SOLICITORS Mallesons Stephen Jaques FIRST RESPONDENT Ms J Smith (solicitor) SOLICITORS Department of Planning LEGAL REPRESENTATIVES: SECOND RESPONDENT Mr T T-W To (barrister) SOLICITORS Williams Love & Nicol THIRD RESPONDENT Mr J E Robson SC SOLICITORS Blake Dawson JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES PRESTON CJ 13 NOVEMBER 2009 40854 OF 2009 CAPITAL AIRPORT GROUP PTY LIMITED V DIRECTOR-GENERAL OF THE DEPARTMENT OF PLANNING JUDGMENT 1 HIS HONOUR: Capital Airport Group Pty Limited ("CAG") is the manager of Canberra Airport. It is concerned that redevelopment in the area surrounding the airport might give rise to complaints about noise from aircraft using the airport and restrictions on such use. One area proposed for redevelopment is South Tralee, within the Queanbeyan City Local Government Area. On 28 January 2009, Queanbeyan City Council ("the Council") resolved under s 54(1) of the Environmental Planning and Assessment Act 1979 (NSW) ("the Act") then in force to prepare a draft local environmental plan to rezone for urban development purposes land within South Tralee ("draft LEP"). Canberra Estates Consortium No 4 Pty Limited ("CEC") is the owner of over half of the land proposed to be rezoned by the draft LEP. 2 On 18 February 2009, the Council, pursuant to s 54(4) of the Act then in force, informed the Director-General of the NSW Department of Planning of the Council's decision to prepare a draft LEP. 3 The Council then prepared the draft LEP pursuant to cl 54(5) of the Act then in force. On or about 10 September 2009, a copy of the draft LEP was submitted to the Director-General pursuant to s 64 of the Act then in force. After receipt of the draft LEP, the Director-General issued to the Council a certificate, purportedly under s 65 of the Act then in force, certifying that the draft LEP may be publicly exhibited under s 66 of the Act. 4 The Council now proposes to give public notice and publicly exhibit the draft LEP and associated documents under s 66. The public exhibition is proposed to commence on Tuesday 17 November 2009 and continue to Tuesday 22 December 2009. 5 CAG commenced proceedings in this Court yesterday seeking a declaration that the decision of the Director-General to issue a s 65 certificate that the draft LEP may be publicly exhibited was made in excess of power. CAG also sought, by way of interlocutory relief, an injunction restraining the Council from publicly exhibiting the draft LEP until final disposition of these proceedings. The application for interlocutory relief was heard today. The Director-General, the Council and CAG opposed the grant of interlocutory relief. 6 The grant of an interlocutory injunction depends on the applicant showing that there is a serious question to be tried and that the balance of convenience favours the grant of an interlocutory injunction. 7 CAG submits that there is a serious question to be tried. CAG submits that the validity of the s 65 certificate depends upon the draft LEP answering the description of being a "pending LEP" in cl 12 of the Environmental Planning and Assessment Regulation 2000 ("the Regulation") as amended. This is because the Act was amended by the Environmental Planning and Assessment Amendment Act 2008 (NSW). The process for making a local environmental plan is now materially different to the process that applied under the unamended Act. The draft LEP has been prepared under the unamended Act. 8 Transitional and savings provisions allow for the provisions governing the preparation and making of a draft local environmental plan under the unamended Act to continue in force with respect to a class of environmental planning instruments that meet the description of being a "pending LEP" under the Regulation. Clause 12(1) of the Regulation defines "pending LEP" to include, relevantly to this case: "a draft amending LEP received by the Director-General from the council under section 54 of the Act before 1 July 2009, but only until 1 July 2010 (or if the Director-General had not issued a certificate under section 65 for public exhibition of the draft before 1 July 2009, until 1 January 2011)." 9 CAG submits that the reference to "section 54" in cl 12(1) is a typographical error and it should instead refer to "section 64". CAG submits that as the draft local environmental plan in this case was not submitted to, and hence not received by, the Director-General under s 64 until 10 September 2009, which date postdates the cut-off date in cl 12(1) of 1 July 2009, the draft LEP does not meet the description of being a "pending LEP". Hence, CAG submits, there was no pending LEP in respect of which the Director-General could issue a 65 certificate and the purported certificate is outside power. No public exhibition under s 66 can or should therefore take place. 10 The respondents contest CAG's construction of cl 12(1). They submit that there is no typographical error in cl 12(1). The reference to "section 54" is correct and was not intended to be a reference to "section 64". They submit that all that cl 12(1) requires is that the Council inform the Director-General of the decision to prepare a draft local environmental plan, under s 54(4), before the cut-off date of 1 July 2009. The language of "a draft amending LEP received by the Director-General" in cl 12(1) needs to be interpreted in light of s 54 itself and in particular the requirements of s 54(4). 11 I find that there is a serious question to be tried as to whether the draft LEP is a "pending LEP" and, hence, whether the s 65 certificate was made in excess of power. 12 I turn now to the balance of convenience. If no interlocutory injunction is issued, the public exhibition under s 66 will take place. Members of the public may inspect the draft LEP and associated documents and may make submissions. However, public notification, exhibition and comment does not effect any change to legal rights or duties. No local environmental plan will be made and no rezoning of land will be effected until after the process of public notification, exhibition and comment has been completed. 13 CAG has submitted that members of the public will be inconvenienced by inspecting and making submissions to a draft local environmental plan which, if CAG is ultimately successful, will have no legal status. The members of the public might also be misled into believing that it is a draft local environmental plan when in fact it is not, if CAG is ultimately successful in its claim. CAG also submitted that the public notification, exhibition and comment process will have no utility if CAG is ultimately successful. 14 The Council responded to this last submission of CAG by submitting that the public notification, exhibition and comment process can still be of utility even if CAG were to be ultimately successful in its challenge. If a new draft local environmental plan were to be prepared, the Minister could dispense with the procedural requirements under the amended Act for public notice, exhibition and comment, by invoking the power under cl 122(2) of sch 6 of the amended Act to dispense with any conditions precedent to the making of an environmental planning instrument. Hence, the Council submits, the public notification, exhibition and comment process will not necessarily be to no avail if it is allowed to continue. 15 The respondents also submit that CAG itself will suffer no irreparable injury and that the inconvenience to the public is not sufficient to warrant the grant of interlocutory relief restraining the process of public notification, exhibition and comment. 16 I find that the balance of convenience favours not granting an interlocutory injunction. The process of public notification, exhibition and comment should be allowed to continue. No irreparable injury will be suffered by CAG by allowing the process to continue. Its argument as to the validity of the s 65 certificate will remain unaffected if the process continues. I do not consider any inconvenience to the public by commenting upon the draft LEP to be significant. Even if CAG is successful in these proceedings, there is still the possibility that the public notification, exhibition and comment process could be of utility, by dint of cl 122(2) of sch 6 of the amended Act. 17 I consider that the preferable course is to expedite the final hearing of the proceedings. The point in issue between the parties is discrete and can be readily brought to final hearing. A final hearing can be allocated by the court within six weeks. Accordingly, I dismiss CAG's application for interlocutory injunctive relief. 18 It is appropriate to expedite the final hearing and make directions for the preparation for the hearing. 19 The Court makes the following orders and directions: 1. Canberra Estates Consortium No 4 Pty Limited is joined as the third respondent to the proceedings. 2. The application by the applicant for an interlocutory injunction made on 12 November 2009 is dismissed. 3. The proceedings are expedited. 4. The matter is fixed for hearing on 14 December 2009. 5. The first respondent is directed to make available to the other parties by 16 November 2009: (a) a copy of the Draft LEP, including any document accompanying the Draft LEP when it was submitted to the first respondent pursuant to s 64 of the Environmental Planning and Assessment Act 1979 (NSW), as unamended by the Environmental Planning and Assessment Amendment Act 2008 (NSW) ("the Unamended Act"), and (b) any briefing note to the first respondent in relation to issuing a certificate pursuant to s 65 of the Unamended Act, and any record of approval by the first respondent. 6. The parties are to agree and file a bundle of documents by 20 November 2009. 7. The respondents are to file and serve any affidavit evidence upon which they seek to rely by 23 November 2009. 8. The applicant is to file and serve any affidavit evidence in reply by 27 November 2009. 9. The applicant is to file and serve written submissions by 27 November 2009. 10. The respondents are to file and serve written submissions by 4 December 2009. 11. The applicant is to file and serve any submissions in reply by 11 December 2009. 12. All the parties have liberty to apply on 2 days' notice. 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.