Ocean Shores Community Association Inc v Byron Shire Council (No 3) [2015] NSWLEC 171

Land and Environment Court New South Wales

Medium Neutral Citation: Ocean Shores Community Association Inc v Byron Shire Council (No 3) [2015] NSWLEC 171 Hearing dates: 20 October 2015 Date of orders: 30 October 2015 Decision date: 30 October 2015 Jurisdiction: Class 4 Before: Pain J Decision: (1) Amended summons dated 20 October 2015 dismissed (2) Injunction restraining the sale of the land made on 9 October 2015 dissolved (3) Costs reserved (4) Exhibits may be returned Catchwords: JUDICIAL REVIEW – Minister's delegate had valid delegation to issue gateway determination approving amendment of local environmental plan to reclassify land from community to operational – gateway determination not invalid because of mistake of jurisdictional fact – gateway determination under Environmental Planning and Assessment Act 1979 not made in breach of s 30 of Local Government Act 1993 Legislation Cited: Administrative Arrangements (Administrative Changes–Ministers and Public Service Agencies) Order 2014 cll 3, 4, 7, 19(2) Byron Local Environmental Plan 1988 Byron Local Environmental Plan 2014 (Amendment No 2) Constitution Act 1902 (NSW) s 50E Environmental Planning and Assessment Act 1979 (NSW) ss 5, 23, 24, 26(1)(h), 53, 54, 55, 56, 59, 118 Environmental Planning and Assessment Amendment Act 2014 (NSW) Government Sector Employment Act 2013 (NSW) s 73, Sch 1 Interpretation Act 1987 (NSW) ss 5(2), 8, 49 Local Government Act 1993 (NSW) ss 25-34, 45, Ch 6 Pt 2 Div 1 Public Sector Employment and Management Act 2002 (NSW) Sch 1 Div 2 Cases Cited: Australian Education Union v Department of Education and Children's Services [2012] HCA 3; (2012) 248 CLR 1 Bungendore Residents Group Inc v Palerang Council (No 3) [2007] NSWLEC 251 Ocean Shores Community Association Inc v Byron Shire Council (No 2) [2015] NSWLEC 162 State of New South Wales v Law (1992) 29 ALD 215 Wende v Horwath (NSW) Pty Ltd [2014] NSWCA 170; (2014) 86 NSWLR 674 Woolworths Ltd v Pallas Newco Pty Ltd [2004] NSWCA 422; (2004) 61 NSWLR 707 Young v Tockassie [1905] HCA 17; (1905) 2 CLR 470 Texts Cited: D Pearce and S Argument, Delegated Legislation in Australia (4th ed 2012, Lexis Nexis Butterworths) Category: Principal judgment Parties: Ocean Shores Community Association Inc (Applicant) Byron Shire Council (First Respondent) Minister for Planning (Second Respondent) Representation: COUNSEL: Ms I J King and Mr G Fredericks (Applicant) Mr A Galasso SC and Mr S Fitzpatrick (First Respondent) Ms K Richardson (Second Respondent)