NSW Caselaw
Reported Decision : 140 LGERA 185
New South Wales Court of Appeal
CITATION: Lane Cove Council v The Minister for Urban Affairs and Planning [2005] NSWCA 122
HEARING DATE(S): 2 September 2004
JUDGMENT DATE: 20 April 2005
JUDGMENT OF: Santow JA at 1; McColl JA at 63; Campbell J at 81
DECISION: Appeal dismissed with costs.
CATCHWORDS: ENVIRONMENTAL LAW - PLANNING - validity of State environmental planning policy (SEPP) - gazetted SEPP different from earlier publicised draft SEPP - interpretation of ss37 and 39 Environmental Planning and Assessment Act 1979 - whether gazetted SEPP was invalid since not a new SEPP which the Minister caused to be prepared by the Director-General pursuant to s37(2) - onus of proof of compliance with s37 - whether gazetted SEPP invalid because different to earlier draft SEPP, and so not made in accordance with "that draft State environmental planning policy submitted to the Minister" under s39(1)(a) - whether differences between gazetted SEPP and earlier draft SEPP so substantial that it was not made in accordance with "that draft State environmental planning policy with such alterations as the Minister thinks fit" under s39(1)(b) - whether gazetted SEPP invalid because not exhibited for public submission, when earlier draft SEPP so exhibited - whether discretion pursuant to s39(2) not to publicise a draft SEPP constrained by course of conduct - whether plenary power to cause a draft SEPP to be prepared.
Environment Planning and Assessment Act 1979 s13; s34; s37; s39; s74 LEGISLATION CITED: Interpretation Act 1987 (NSW) s3; s45
Darling Casino Ltd v Minister for Planning and Sydney Harbour Casino Pty Ltd (1995) 86 LGERA 186 Environment Agency v Empress Car Co (Abertillery) Ltd [1999] 2 AC 22 Lane Cove Council v Minister for Urban Affairs and Planning [2003] NSWLEC 205; (2003) 129 LGERA Minister for Natural Resources v NSW Aboriginal Land Council (1987) 9 NSWLR 154 CASES CITED: Provincial Insurance Australia Pty Ltd v Consolidated Wood Products Pty Ltd & Others (1991) 25 NSWLR 541 Save the Showground for Sydney Inc v the Minister of Urban Affairs and Planning (1997) 95 LGERA 33 Smith v Wyong Shire Council (2003) 132 LGERA 148 Timbarra Protection Coalition v Ross Mining NL (1999) 46 NSWLR 55 Weal v Bathurst City Council (2000) 111 LGERA 181
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