Sutherland Shire Council v Benedict Industries Pty Ltd (No 4) [2015] NSWLEC 101

Sutherland Shire Council v Benedict Industries Pty Ltd (No 4) [2015] NSWLEC 101

The Sutherland Shire Tree and Bushland Preservation Order 2001 was validly made by the council on 21 May 2001, its application could be read down via severance to cover only land within council power, restricting approval to written permission was within the council's authority under the relevant environmental planning instrument, and the repeal of the 2000 LEP by the 2006 LEP did not render the Order inoperative in respect of land excluded from the repeal. The collateral challenge is dismissed.

Jurisdiction
Australia
Judgment Date
19 June 2015
Procedural Posture
Criminal Collateral Challenge / Interlocutory Judgment on Validity of Tree and Bushland Preservation Order
Outcome
Collateral challenge dismissed.
Legal Topics
['validity of Tree and Bushland Preservation Order' 'interpretation of Subordinate Legislation' 'doctrine of Severance' 'council Powers Under Environmental Planning Instruments']
['environmental Law' 'statutory Interpretation' 'local Government Law'] ['validity of Tree and Bushland Preservation Order' 'interpretation of Subordinate Legislation' 'doctrine of Severance' 'council Powers Under Environmental Planning Instruments']

Case Brief

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Procedural Posture

Criminal Collateral Challenge / Interlocutory Judgment on Validity of Tree and Bushland Preservation Order

Legal Issues

  1. 1 ['Whether the Tree and Bushland Preservation Order was lawfully made by council under the relevant environmental planning instrument' "Whether restricting approvals to written permission exceeded council's authority" 'Whether the Order was invalid due to inability to apply consistently across all of Sutherland Shire at adoption' 'Whether the Order was repealed by the Sutherland Shire Local Environmental Plan 2006 at the time of alleged offences']

Ratio Decidendi

The Sutherland Shire Tree and Bushland Preservation Order 2001 was validly made by the council on 21 May 2001, its application could be read down via severance to cover only land within council power, restricting approval to written permission was within the council's authority under the relevant environmental planning instrument, and the repeal of the 2000 LEP by the 2006 LEP did not render the Order inoperative in respect of land excluded from the repeal. The collateral challenge is dismissed.

Court Disposition

Collateral challenge dismissed.

Orders

  • ['Collateral challenge dismissed.' 'Costs reserved.' 'Exhibits to be returned.']