DeAngelis v Pepping [2014] NSWLEC 108

DeAngelis v Pepping [2014] NSWLEC 108

The amended summons was dismissed because the applicant failed to establish any statutory non-compliance in the community consultation for Amendment 13, the Planning Proposal materials were not misleading, the EPAA excluded any additional common law procedural fairness rights to notification and hearing in this plan-making context, the applicant was in any event aware of the public exhibition, and Amendment 13 was validly made by the Council as the Minister's delegate with Mr Pepping signing as the Council's authorised agent. The admitted failure to publicly exhibit the draft DCP did not invalidate the DCP because the amendment merely regularised the practical effect of Amendment 13 and,...

Jurisdiction
Australia
Judgment Date
25 July 2014
Procedural Posture
Class 4 Proceedings Challenging the Validity of a Local Environmental Plan Amendment and Development Control Plan / Principal Judgment on Amended Summons
Outcome
Amended Summons dismissed. Subject to an application for a different order being made within seven days, the applicant was ordered to pay the second respondent's costs of the proceedings.
Legal Topics
['validity of Local Environmental Plan' 'community Consultation Requirements' 'procedural Fairness' 'delegation and Agency in Plan Making' 'development Control Plan Public Exhibition' 'discretionary Relief for Statutory Non Compliance' 'jones V Dunkel Inference']
['administrative Law' 'environmental Planning and Assessment' 'local Government' 'evidence'] ['validity of Local Environmental Plan' 'community Consultation Requirements' 'procedural Fairness' 'delegation and Agency in Plan Making' 'development Control Plan Public Exhibition' 'discretionary Relief for Statutory Non Compliance' 'jones V Dunkel Inference']

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Procedural Posture

Class 4 Proceedings Challenging the Validity of a Local Environmental Plan Amendment and Development Control Plan / Principal Judgment on Amended Summons

Legal Issues

  1. 1 ['Whether the community consultation requirements for the planning proposal had been complied with under the Environmental Planning and Assessment Act 1979 (NSW).' 'Whether the public exhibition was misleading because the draft Development Control Plan was not exhibited with the Planning Proposal.' 'Whether common law procedural fairness required notice to the applicant, adjoining or affected landowners, notice of the absence of a savings and transitional provision, or exhibition of the draft Development Control Plan.' 'Whether there was valid authority to make Amendment 13 to the Wingecarribee Local Environmental Plan 2010 where the instrument was signed by Mark Pepping.' 'Whether failure to publicly exhibit the draft Development Control Plan under the Environmental Planning and Assessment Regulation 2000 (NSW) invalidated the Development Control Plan or warranted relief.' 'Whether a Jones v Dunkel inference should be drawn from the absence of the applicant and Peter DeAngelis for cross-examination.']

Ratio Decidendi

The amended summons was dismissed because the applicant failed to establish any statutory non-compliance in the community consultation for Amendment 13, the Planning Proposal materials were not misleading, the EPAA excluded any additional common law procedural fairness rights to notification and hearing in this plan-making context, the applicant was in any event aware of the public exhibition, and Amendment 13 was validly made by the Council as the Minister's delegate with Mr Pepping signing as the Council's authorised agent. The admitted failure to publicly exhibit the draft DCP did not invalidate the DCP because the amendment merely regularised the practical effect of Amendment 13 and,...

Court Disposition

Amended Summons dismissed. Subject to an application for a different order being made within seven days, the applicant was ordered to pay the second respondent's costs of the proceedings.

Orders

  • ['Amended Summons dismissed.' "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."]