Ecolex Logo
The gateway to
environmental law
Search results » Jurisprudence

John Brown Lenton & Co Pty Ltd v. Minister for Urban Affairs and Planning (First Respondent), Director-general of Department of Urban Affairs and Planning (Second Respondent), Blue Mountains City Council (Third Respondent)

Country/Territory
Australia
Type of court
Others
Date
Dec 1, 1999
Source
UNEP, InforMEA
Court name
Land and Environment Court of New South Wales
Judge
Cowdroy
Reference number
NSWLEC 213
Language
English
Subject
Land & soil
Keyword
Legal proceedings/administrative proceedings Public participation Land-use planning
Abstract
The applicant sought a declaration that the respondents had failed to follow the provisions of Part 3, Division 4 of the Environmental Planning and Assessment Act 1979 ("the EP&A Act") in the preparation of the draft Amendment No 25 to the Blue Mountains Local Environment Plan 1991. On 11 March 1997 the third respondent ("the council") prepared a draft local environmental plan designed to resolve anomalies in respect of land zoned Residential Bush land Conservation Zone. The draft plan sought to impose new restrictions upon the development of land in certain zones. The applicant stated, inter alia, that the draft plan had not been submitted in accordance with s 64 of the Act because council had not consulted public authorities, bodies and other persons pursuant to s 62 of the EP&A Act. The court emphasized that Section 62 provided that in the preparation of an environmental study or a draft local environmental plan the council `shall consult’ with various bodies. The term `shall’ was prima facie mandatory, although it had to be construed in the context of the relevant legislation. The court decided that the requirement of consultation was never to be treated perfunctorily or as a mere formality. If a council had not complied with the requirement of s 62 an essential requirement had not been fulfilled. Thus, there had been a breach of s 64. The applicant also submitted that the final draft plan prepared by the council was so different to the originally exhibited draft plan that the council was required to make a fresh resolution to publicly exhibit the draft plan under s 66 of the EP&A Act. The court was of the view that these questions required consideration of the principles relating to the extent to which alterations may be made to a draft plan without changing its character. It was necessary to consider whether the draft plan was now `a quite different plan’ from the exhibited draft plan. This in turn required a consideration of the changes that had occurred since the exhibition of the draft plan. It concluded that a change in philosophy could be discerned in the formulation of many of the development criteria. There were highly significant restrictions which were not incorporated in the exhibited draft plan. The impact of these new provisions created a stringent regime for development which was not stated in the original draft plan. No opportunity for public consultation or participation had been afforded in respect thereof. The court therefore held that in the formulation of draft Amendment No 25 to the Blue Mountains Local Environmental Plan 1991, the second and third respondents had failed to follow the provisions of Part 3, Division 4 of the EP&A Act.
Full text
213.htm