BURWOOD COUNCIL v PD MAYOH PTY LTD and ANOR [1997] NSWCA 54

BURWOOD COUNCIL v PD MAYOH PTY LTD and ANOR [1997] NSWCA 54

The trial judge was bound by the declaration of the Court of Appeal that the Regional Environment Plan was invalidly made, and was not entitled to hold that part of the Plan relating to Burwood land survived the general invalidity declared; thus the development consents granted under the REP were void.

Parties
Appellant: Burwood Council; First Respondent: PD Mayoh Pty Ltd; Second Respondent: Minister for Planning and Urban Affairs
Jurisdiction
Australia
Judgment Date
30 September 1997
Procedural Posture
Civil Appeal / Appeal Decision
Outcome
Appeal allowed; trial judgment set aside; matter stood over for seven days for submissions on form of orders; respondent to pay appellant's costs with certificate under the Suitors Fund Act 1951.
Legal Topics
Precedent, Ultra Vires, Doctrine of Severability, Invalidity of Delegated Legislation
Administrative Law Planning Law Precedent Ultra Vires Doctrine of Severability Invalidity of Delegated Legislation

Case Brief

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Parties

Burwood Council

Appellant

PD Mayoh Pty Ltd

First Respondent

Minister for Planning and Urban Affairs

Second Respondent

Procedural Posture

Civil Appeal / Appeal Decision

Legal Issues

  1. 1 Whether a trial judge is bound by a Court of Appeal declaration that a Regional Environment Plan (REP) was invalidly made.
  2. 2 Whether subordinate parts of an invalid REP can be severed and sustained independently.
  3. 3 Effect of previous appellate decision upon development consents issued under a declared invalid regional plan.

Ratio Decidendi

The trial judge was bound by the declaration of the Court of Appeal that the Regional Environment Plan was invalidly made, and was not entitled to hold that part of the Plan relating to Burwood land survived the general invalidity declared; thus the development consents granted under the REP were void.

Court Disposition

Appeal allowed; trial judgment set aside; matter stood over for seven days for submissions on form of orders; respondent to pay appellant's costs with certificate under the Suitors Fund Act 1951.

Orders

  • Appeal allowed.
  • Trial judgment set aside.