BURWOOD COUNCIL v PD MAYOH PTY LTD [1997] NSWCA 53

BURWOOD COUNCIL v PD MAYOH PTY LTD [1997] NSWCA 53

Where the Court of Appeal declares that a statutory instrument such as a Regional Environment Plan is invalidly made, it is not open to the lower court to declare or accept that any part of it is valid; the doctrine of precedent requires adherence to the superior court's order regardless of arguments about severability.

Parties
Appellant: Burwood Council; First Respondent: PD Mayoh Pty Ltd; Second Respondent: Minister for Planning & Urban Affairs
Jurisdiction
Australia
Judgment Date
30 September 1997
Procedural Posture
Appeal / Decision on Appeal
Outcome
Appeal allowed; judgment of trial judge set aside; matter stood over for seven days for parties to make submissions on form of orders; costs awarded to appellant, including certificate under Suitors Fund Act 1951.
Legal Topics
Doctrine of Precedent, Invalidity of Statutory Instruments, Development Consent, Severability, Binding Nature of Appellate Judgments
Administrative Law Planning Law Doctrine of Precedent Invalidity of Statutory Instruments Development Consent Severability Binding Nature of Appellate Judgments

Case Brief

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Parties

Burwood Council

Appellant

PD Mayoh Pty Ltd

First Respondent

Minister for Planning & Urban Affairs

Second Respondent

Procedural Posture

Appeal / Decision on Appeal

Legal Issues

  1. 1 Whether a prior appellate court declaration that a Regional Environment Plan (REP) was invalidly made binds a lower court as to the validity of the plan when the prior decision only considered part of the REP.
  2. 2 Whether severability of the REP's provisions allowed part of the plan to remain valid notwithstanding the appellate declaration of invalidity.

Ratio Decidendi

Where the Court of Appeal declares that a statutory instrument such as a Regional Environment Plan is invalidly made, it is not open to the lower court to declare or accept that any part of it is valid; the doctrine of precedent requires adherence to the superior court's order regardless of arguments about severability.

Court Disposition

Appeal allowed; judgment of trial judge set aside; matter stood over for seven days for parties to make submissions on form of orders; costs awarded to appellant, including certificate under Suitors Fund Act 1951.

Orders

  • Appeal allowed.
  • Judgment of the trial judge set aside.