Benedict Industries Pty Ltd v Sutherland Shire Council [2015] NSWCCA 272

Benedict Industries Pty Ltd v Sutherland Shire Council [2015] NSWCCA 272

The Council did purport to make the TPO on 21 May 2001. Although the TPO may have exceeded the Council's power in some respects or geographical extent, it could be read down so as to apply only to areas and in ways within the Council's authority. There was no sufficient basis to conclude the Council intended the TPO not to operate at all unless in its entirety. The repeal of the enabling environmental plan did not impliedly repeal the TPO in relation to the subject land, and the TPO's continued operation was valid.

Parties
Appellant: Benedict Industries Pty Ltd; Respondent: Sutherland Shire Council
Jurisdiction
Australia
Judgment Date
26 October 2015
Procedural Posture
Criminal Appeal / Appeal From the Land and Environment Court to the Court of Criminal Appeal
Outcome
Appeal dismissed
Legal Topics
Environmental Offences, Tree and Bushland Preservation Order, Validity of Local Government Instruments, Implied Repeal, Construction of Council Resolutions, Reading Down Statutory Instruments
Environment and Planning Criminal Law Environmental Offences Tree and Bushland Preservation Order Validity of Local Government Instruments Implied Repeal Construction of Council Resolutions Reading Down Statutory Instruments

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Parties

Benedict Industries Pty Ltd

Appellant

Sutherland Shire Council

Respondent

Procedural Posture

Criminal Appeal / Appeal From the Land and Environment Court to the Court of Criminal Appeal

Legal Issues

  1. 1 Whether Sutherland Shire Council purported to make the Tree and Bushland Preservation Order (TPO) in 2001
  2. 2 Whether the TPO was validly made under the enabling environmental planning instrument
  3. 3 Whether the terms of the TPO exceeded the Council's authority

Ratio Decidendi

The Council did purport to make the TPO on 21 May 2001. Although the TPO may have exceeded the Council's power in some respects or geographical extent, it could be read down so as to apply only to areas and in ways within the Council's authority. There was no sufficient basis to conclude the Council intended the TPO not to operate at all unless in its entirety. The repeal of the enabling environmental plan did not impliedly repeal the TPO in relation to the subject land, and the TPO's continued operation was valid.

Court Disposition

Appeal dismissed

Orders

  • Grant leave to appeal.
  • Dismiss the appeal.