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Capital Airport Group Pty Ltd v Director-General of the Department of Planning.

País/Territorio
Australia
Tipo de la corte
Otros
Fecha
Oct 13, 2010
Fuente
UNEP, InforMEA
Nombre del tribunal
Land and Environment Court of New South Wales
Juez
Lloyd .
Número de referencia
[2010] NSWLEC 5
Idioma
Inglés
Materia
Cuestiones jurídicas, Medio ambiente gen.
Resumen
In July 2009, the local environmental plan making process was amended through changes to Part 3 of the EP&A Act. Under the new system, known as the ‘gateway’ plan-making process, certain pending draft Local Environment Plans (LEPs), that were in preparation prior to 1 July 2009, are able to continue to be made under the repealed plan-making provisions of the EP&A Act. The South Tralee development proposes the rezoning of rural land near Queanbeyan, south of Canberra, to residential land, with more than 2,000 homes proposed to built on the land by the Village Building Company (“VBC”), supported by Queanbeyan City Council (“the Council”). The Canberra Airport opposes the project, saying homes will be exposed to unacceptable aircraft noise. 17. The applicant submits that the draft LEP in the present case contains provisions for the repeal of all LEPs and deemed environmental planning instruments applying only to the land at South Tralee, so that the draft LEP can only be a draft “principal LEP”. Accordingly, it follows that in the definition of “pending LEP” in cl 12(1), it is only paragraph (a) that is potentially applicable to the draft LEP in the present case. The Director-General had relied on the definition of ‘pending LEP’ to cover all draft LEPs including those where the Director-General had been notified by a local council of their intention to prepare (under section 54 of the EP&A Act) prior to 1 July 2009. This is a very early stage in the plan-making process. However, Justice Lloyd determined the definition of ‘pending LEP’ was limited to only those draft LEPs which had been submitted prior to 1 July 2009 by Council to the Director-General under section 64 of the EP&A Act requesting a certificate to publically exhibit. The draft LEP for South Tralee was submitted to the Director- General in September 2009, seeking permission to publically exhibit. The certificate to exhibit issued by a delegate of the Director-General was deemed invalid as the Court held that the Council and the Department of Planning should have followed the new ‘gateway’ process. The Court declared that the Director-General's decision under s 65 of the Unamended Act to issue a certificate certifying that the draft LEP may be publicly exhibited in accordance with s 66 was made in excess of power and that the certificate was invalid.
Texto completo
COU-156936.pdf