De Angelis v Pepping [2015] NSWCA 236

De Angelis v Pepping [2015] NSWCA 236

The Amending LEP was invalid because Mr Pepping lacked valid authority to make the instrument on behalf of the Council; authority was neither properly delegated nor validly implied. The Council’s resolution did not amount to the making of the LEP and did not confer authority to Mr Pepping. The court also held that imperfections in community consultation did not amount to statutory invalidity because the statutory opportunity to make submissions was provided.

Parties
Appellant: Alcide De Angelis; First Respondent: Mark Pepping; Second Respondent: Wingecarribee Shire Council; Third Respondent: The Minister Administering the Environment Planning and Assessment Act 1979
Jurisdiction
Australia
Judgment Date
20 August 2015
Procedural Posture
Appeal / Court of Appeal Decision
Outcome
Appeal allowed
Legal Topics
Local Environmental Plan, Community Consultation, Agency and Delegation, Procedural Fairness, Validity of Amendment, Authority to Make Environmental Instruments
Environment and Planning Local Environmental Plan Community Consultation Agency and Delegation Procedural Fairness Validity of Amendment Authority to Make Environmental Instruments

Case Brief

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Parties

Alcide De Angelis

Appellant

Mark Pepping

First Respondent

Wingecarribee Shire Council

Second Respondent

The Minister Administering the Environment Planning and Assessment Act 1979

Third Respondent

Procedural Posture

Appeal / Court of Appeal Decision

Legal Issues

  1. 1 Whether the Council failed to comply with statutory community consultation requirements for the planning proposal/amending LEP.
  2. 2 Whether the making of the Amending LEP denied procedural fairness to the appellant or other affected persons.
  3. 3 Whether Mr Pepping had valid authority to make or sign the Amending LEP on behalf of the Council.

Ratio Decidendi

The Amending LEP was invalid because Mr Pepping lacked valid authority to make the instrument on behalf of the Council; authority was neither properly delegated nor validly implied. The Council’s resolution did not amount to the making of the LEP and did not confer authority to Mr Pepping. The court also held that imperfections in community consultation did not amount to statutory invalidity because the statutory opportunity to make submissions was provided.

Court Disposition

Appeal allowed

Orders

  • Appeal allowed.
  • Set aside the orders made by Adamson AJ on 25 July 2014.