DeAngelis v Pepping [2014] NSWLEC 108

Land and Environment Court New South Wales

Medium Neutral Citation: DeAngelis v Pepping [2014] NSWLEC 108 Hearing dates: 14 to 15 July 2014 Decision date: 25 July 2014 Jurisdiction: Class 4 Before: Adamson AJ Decision: 1. Amended Summons dismissed. 2. Subject to an application for a different order being made to my Associate within seven days, order the applicant to pay the second respondent's costs of the proceedings. Catchwords: ADMINISTRATIVE LAW - validity of Local Environmental Plan (LEP) - whether statutory community consultation requirements had been complied with - certain sections of the Council guidelines, which were referred to by the gateway determination, could not be treated as mandatory notice requirements due to the absence of the language of compulsion - Planning Proposal materials not misleading - unnecessary for Planning Proposal to address consequential changes to be made to Development Control Plan (DCP)- Environmental Planning and Assessment Act 1979 (NSW) provides for community consultation and implicitly excludes the common law rules of procedural fairness in terms of the right to be notified and heard - there was valid authority to make amendments to the Local Environmental Plan 2010 - first respondent was agent rather than delegate authorised by the council to sign instruments - breach of requirement for public exhibition of DCP under the Environmental Planning and Assessment Regulations 2000 (NSW) did not lead to invalidity of DCP as amendment of DCP amounted to no more than a regularisation of a change effected by an LEP - in any event discretion to award relief would have been declined given the status of DCPs relative to LEPs

EVIDENCE - Jones v Dunkel inference available that the applicant's evidence would not have assisted given the absence of evidence to explain absence from the jurisdiction - Legislation Cited: Criminal Procedure Act 1986 (NSW), s 126 Environmental Planning and Assessment Act 1979 (NSW), ss 5, 23, 24, 34, 35, 53, 54, 55, 56, 57, 58, 59, 74B, 74C, 79B, 79C, 122, 123, 124 Environmental Planning and Assessment Regulation 2000 (NSW), cl 16, 18, 20, 21, 22, 88 Local Government Act 1993 (NSW), ss 355, 377, 378 Cases Cited: Ainsworth v Criminal Justice Commission [1992] HCA 10 Australians for Sustainable Development Inc v Minister for Planning [2011] NSWLEC 33; 182 LGERA 370 Australians for Sustainable Development Inc v Minister for Planning (No. 2) [2011] NSWLEC 70 Baiada v Waste Recycling and Processing Service of NSW [1999] NSWCA 139; 130 LGERA 52 Carltona Limited v Commissioner of Works [1943] 2 All ER 560 Centro Properties Ltd v Hurstville City Council [2004] NSWLEC 401; 135 LGERA 257 Columbia Holdings Pty Ltd v City of Armadale [2012] WASC 422; 193 LGERA 77 Curac v Shoalhaven City Council (1993) 81 LGERA 124 Hill v Woollahra Municipal Council [2003] NSWCA 106; 127 LGERA 7 Homeworld Ballina v Ballina Shire Council [2010] NSWCA 65; 172 LGERA 211 Hoxton Park Residents Action Group Inc v Liverpool City Council [2011] NSWCA 349; 81 NSWLR 638 O'Reilly v Commissioners of the State Bank of Victoria [1983] HCA 47; 153 CLR 1 Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; 194 CLR 355 R v Halmi [2005] NSWCCA 2; 62 NSWLR 263 R v Janceski [2005] NSWCCA 281; 64 NSWLR 10 in Re Minister for Immigration and Multicultural and Indigenous Affairs: ex parte Lam [2003] HCA 6; 214 CLR 1 Re Reference Section 11 Ombudsman Act for an Advisory Opinion (1979) 2 ALD 86 Saeed v The Minister [2010] HCA 23; 241 CLR 252 Terrace Tower Holdings Pty Limited v Sutherland Shire Council [2003] NSWCA 289; 129 LGERA 195 Vanmeld Pty Limited v Fairfield City Council [1999] NSWCA 6; 46 NSWLR 78 Texts Cited: JD Heydon, Cross on Evidence (9th Edition, 2012, LexisNexis online version) Category: Principal judgment Parties: Alcide DeAngelis (Applicant) Mark Pepping (First Respondent) Wingecarribee Shire Council (Second Respondent) Minister administering the Environmental Planning and Assessment Act 1979 (Third Respondent) Representation: Counsel: Solicitors: File Number(s): 2014/40245 Publication restriction: Nil